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EXHIBIT 4.23
OXFORD AUTOMOTIVE, INC.
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AMENDED AND RESTATED CREDIT AGREEMENT
dated as of March 31, 1999
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THE BORROWING SUBSIDIARIES PARTY HERETO,
THE LENDERS PARTY HERETO
and
NBD BANK, as Agent
ARRANGED BY FIRST CHICAGO CAPITAL MARKETS, INC.
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TABLE OF CONTENTS
Article Page
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I. DEFINITIONS......................................................................................
1.1 Certain Definitions.....................................................................
1.2 Other Definitions; Rules of Construction................................................
II. THE COMMITMENTS, THE SWINGLINE FACILITY AND THE ADVANCES.........................................
2.1 Commitment of the Lenders and Canadian and Swingline Facility...........................
2.2 Termination and Reduction of Commitments................................................
2.3 Fees....................................................................................
2.4 Disbursement of Advances................................................................
2.5 Conditions for First Disbursement.......................................................
2.6 Further Conditions for Disbursement.....................................................
2.7 Subsequent Elections as to Borrowings...................................................
2.8 Limitation of Requests and Elections....................................................
2.9 Minimum Amounts; Limitation on Number of Borrowings; Etc................................
2.10 Borrowing Base Adjustment...............................................................
2.11 Security and Collateral.................................................................
III. PAYMENTS AND PREPAYMENTS OF ADVANCES.............................................................
3.1 Principal Payments and Prepayments......................................................
3.2 Interest Payments.......................................................................
3.3 Letters of Credit and Acceptances.......................................................
3.4 Additional Terms for Acceptances........................................................
3.5 Payment Method..........................................................................
3.6 No Setoff or Deduction..................................................................
3.7 Payment on Non-Business Day; Payment Computations.......................................
3.8 Additional Costs........................................................................
3.9 Illegality and Impossibility............................................................
3.10 Indemnification.........................................................................
3.11 Taxes...................................................................................
3.12 Substitution of Lender..................................................................
IV. REPRESENTATIONS AND WARRANTIES...................................................................
4.1 Corporate Existence and Power...........................................................
4.2 Corporate Authority.....................................................................
4.3 Binding Effect..........................................................................
4.4 Subsidiaries............................................................................
4.5 Litigation..............................................................................
4.6 Financial Condition.....................................................................
4.7 Use of Advances.........................................................................
4.8 Consents, Etc...........................................................................
4.9 Taxes...................................................................................
4.10 Title to Properties.....................................................................
4.11 Borrowing Base..........................................................................
4.12 ERISA...................................................................................
4.13 Disclosure..............................................................................
4.14 Environmental Matters...................................................................
4.15 Solvency................................................................................
4.16 No Defaults under Certain Agreements....................................................
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4.17 Intellectual Property...................................................................
4.18 Preferred Stock.........................................................................
4.19 Investment Company Act; Other Regulations...............................................
4.20 Senior Subordinated Debt................................................................
4.21 Unrestricted Subsidiaries...............................................................
4.22 Acquisitions............................................................................
4.23 Material Agreement......................................................................
4.24 Compliance With Laws....................................................................
4.25 Year 2000...............................................................................
4.26 OPI Acquisition.........................................................................
4.27 Mexican Facility........................................................................
V. COVENANTS........................................................................................
5.1 Affirmative Covenants...................................................................
(a) Preservation of Corporate Existence, Etc.......................................
(b) Compliance with Laws, Etc......................................................
(c) Maintenance of Properties; Insurance...........................................
(d) Reporting Requirements.........................................................
(e) Accounting; Access to Records, Books, Etc......................................
(f) Maintenance of Business Lines..................................................
(g) Additional Security and Collateral.............................................
(h) Further Assurances.............................................................
(i) Year 2000......................................................................
5.2 Negative Covenants......................................................................
(a) Net Worth......................................................................
(b) Total Covenant Obligations to Total Covenant EBITDA Ratio......................
(c) Fixed Charge Coverage Ratio....................................................
(d) Interest Coverage Ratio........................................................
(e) Indebtedness...................................................................
(f) Liens..........................................................................
(g) Merger; Acquisitions; Etc......................................................
(h) Disposition of Assets; Etc.....................................................
(i) Nature of Business.............................................................
(j) Dividends and Other Restricted Payments........................................
(k) Capital Expenditures...........................................................
(l) Loans, Advances and Investments................................................
(m) Transactions with Affiliates...................................................
(n) Sale and Leaseback Transactions and other Financing Transactions...............
(o) Negative Pledge Limitation.....................................................
(p) FSC Commissions................................................................
(q) Inconsistent Agreements........................................................
(r) Subsidiary Dividends...........................................................
(s) Preferred Stock................................................................
(t) Other Indebtedness and Agreements..............................................
(u) Management Fees................................................................
(v) Restricted Subsidiaries........................................................
5.3 Additional Covenants....................................................................
VI. DEFAULT..........................................................................................
6.1 Events of Default.......................................................................
(a) Nonpayment.....................................................................
(b) Misrepresentation..............................................................
(c) Certain Covenants..............................................................
(d) Other Defaults.................................................................
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(e) Cross Defaults.................................................................
(f) Judgments......................................................................
(g) ERISA..........................................................................
(h) Insolvency, Etc................................................................
(i) Security Documents.............................................................
(j) Control........................................................................
(k) Cofimeta Acquisition; Mexican Facility.........................................
6.2 Remedies................................................................................
6.3 Distribution of Proceeds of Collateral..................................................
VII. THE AGENT AND THE LENDERS........................................................................
7.1 Appointment and Authorization...........................................................
7.2 Agent and Affiliates....................................................................
7.3 Scope of Agent's Duties.................................................................
7.4 Reliance by Agent.......................................................................
7.5 Default.................................................................................
7.6 Liability of Agent......................................................................
7.7 Nonreliance on Agent and Other Lenders..................................................
7.8 Indemnification.........................................................................
7.9 Successor Agent.........................................................................
7.10 Sharing of Payments.....................................................................
VIII. MISCELLANEOUS....................................................................................
8.1 Amendments, Etc.........................................................................
8.2 Notices.................................................................................
8.3 No Waiver By Conduct; Remedies Cumulative...............................................
8.4 Reliance on and Survival of Various Provisions..........................................
8.5 Expenses; Indemnification...............................................................
8.6 Successors and Assigns..................................................................
8.7 Counterparts............................................................................
8.8 Governing Law...........................................................................
8.9 Table of Contents and Headings..........................................................
8.10 Construction of Certain Provisions......................................................
8.11 Integration and Severability............................................................
8.12 Independence of Covenants...............................................................
8.13 Interest Rate Limitation................................................................
8.14 Judgment and Payment....................................................................
8.15 Acknowledgments.........................................................................
8.16 Waiver of Jury Trial....................................................................
EXHIBITS
Exhibit A - Borrowing Base Certificate
Exhibit B - Company Security Agreement
Exhibit C - Environmental Certificate
Exhibit D - Guaranty
Exhibit E - Guarantor Security Agreement
Exhibit F - Revolving Credit Note
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Exhibit G - Swingline Note
Exhibit H - Term Note
Exhibit I - Tooling Revolving Credit Note
Exhibit J - Disbursement of Advances
Exhibit K - Disbursement of Swingline Loans
Exhibit L - Subsequent Elections as to Borrowings
Exhibit M - Assignment and Acceptance
SCHEDULES
Schedule 1.1(A) - Existing Letters of Credit
Schedule 1.1(B) - Mexican Facility Documents
Schedule 1.1(C) - Mexican Subsidiaries
Schedule 1.1(D) - Existing Restricted Subsidiaries
Schedule 1.1(E) - Senior Subordinated Debt Documents
Schedule 4.4 - Subsidiaries
Schedule 4.5 - Litigation
Schedule 4.17 - Intellectual Property
Schedule 4.18 - ▇▇▇▇▇▇▇ Preferred Stock
Schedule 4.22 - Cofimeta Indebtedness
Schedule 4.26 - OPI Acquisition
Schedule 5.2(e) - Indebtedness
Schedule 5.2(f) - Liens
Schedule 5.2(o) - Negative Pledges
Schedule 5.2(u) - Management Fees
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THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 31,
1999 (this "Agreement"), is by and among OXFORD AUTOMOTIVE, INC., a Michigan
corporation (the "Company"), each of the Subsidiaries of the Company designated
in Section 1.1 as a Borrowing Subsidiary (a "Borrowing Subsidiary" and
collectively with the Company the "Borrowers"), the lenders set forth on the
signature pages hereof, their successors and assigns, and each other Person
becoming a lender hereunder from time to time (collectively, together with any
Affiliates of such Lenders designated by such Lenders to make Canadian Advances
hereunder, the "Lenders" and individually a "Lender"), and NBD BANK, a Michigan
banking corporation, as agent (in such capacity, and collectively with any of
its Affiliates designated by it to administer any of its functions hereunder at
any time, the "Agent") for the Lenders.
RECITAL
The Company, the subsidiary borrowers and lenders party thereto, and
NBD Bank, as Agent, are parties to an Amended and Restated Credit Agreement
dated as of February 4, 1999 (as amended, the "Existing Credit Agreement"), and
the parties hereto desire to amend and restate the Existing Credit Agreement as
set forth herein.
The parties hereto agree to amend and restate the Existing Credit
Agreement in its entirety as follows:
ARTICLE I.
DEFINITIONS
1.1 Certain Definitions. As used herein the following terms shall
have the following respective meanings:
"Acceptance" shall mean Bankers' Acceptances and BA Equivalent
Loans.
"Acceptance Fee" shall mean the fee payable at the time of the
acceptance of Bankers' Acceptances established by multiplying the face amount of
such Bankers' Acceptances by the Applicable Margin and by multiplying the
product so obtained by a fraction having a numerator equal to the number of days
in the term of such Bankers' Acceptances and a denominator of 365.
"Acquisition" is defined in Section 5.2(g).
"Advance" shall mean any Loan, any acceptance of any Bankers'
Acceptance, any BA Equivalent Loan, and any Letter of Credit Advance.
"Affiliate", when used with respect to any Person, shall mean any
other Person which, directly or indirectly, controls or is controlled by or is
under common control with such Person. For purposes of this definition "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), with respect to any Person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise, and a Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of voting
Capital Stock of the controlled Person.
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"Applicable Lending Office" shall mean, with respect to any Loan
made by any Lender or with respect to such Lender's Commitments, the office or
branch of such Lender or of any Affiliate of such Lender located at the address
specified as the applicable lending office for such Lender set forth next to the
name of such Lender in the signature pages hereof or any other office, branch or
Affiliate of such Lender or of any Affiliate of such Lender hereafter selected
and notified in writing to the Company and the Agent by such Lender. Any
Affiliate of any such Lender so selected and notified shall have all rights of a
Lender hereunder.
"Applicable Margin" shall mean, with respect to any Floating Rate
Loan, Bankers' Acceptance, LIBOR Loan, commitment fee payable under Section
2.3(a) and Letter of Credit fee payable pursuant to Section 2.3(b), as the case
may be, the per annum rate (expressed as a percentage) in accordance with the
following:
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Bankers'
Total Covenant Acceptances,
Obligations to Letter of Credit
Total Covenant Fees and
EBITDA Ratio Floating Rate Loans LIBOR Loans Facility Fees
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>4.75 1.00% 2.25% 0.50%
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>4.00 but <4.75 0.75% 2.00% 0.50%
-
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>3.50 but <4.00 0.50% 1.80% 0.45%
-
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>3.00 but <3.50 0.125% 1.375% 0.375%
-
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<3.00 0.00% 1.125% 0.375%
-
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The Applicable Margin shall be based upon the Total Covenant
Obligations to Total Covenant EBITDA Ratio as calculated as of the last day of
each fiscal quarter of the Company and the Applicable Margin shall be adjusted
on (a) the last day of the second month following the close of the fiscal
quarter for the first three fiscal quarters, and (b) the last day of the fourth
month following the close of the last fiscal quarter, based on the financial
statements of the Company and related compliance certificate pursuant to Section
5.1(d) to the Lenders; provided that, (i) as of the Effective Date, the
Applicable Margin shall be based on a Total Covenant Obligations to Total
Covenant EBITDA Ratio of greater than 4.00 to 1.00 but less than or equal to
4.75 and (ii) upon the occurrence and during the continuance of any Event of
Default the Applicable Margin shall be based on a Total Covenant Obligations to
Total Covenant EBITDA Ratio of greater than 4.75 to 1.00, in each case
regardless of the actual Total Covenant Obligations to Total Covenant EBITDA
Ratio.
"Arranger" shall mean First Chicago Capital Markets, Inc.
"Assignment and Acceptance" is defined in Section 8.6(d).
"BA Equivalent Loan" shall mean a Loan contemplated as such in
Section 3.4.
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"BA Rate" shall mean the rate per annum determined as being the
arithmetic average (rounded upwards, if necessary, to the nearest .01%) of the
rates quoted for First Chicago/NBD Canada for one month bankers' acceptances as
appears on the Reuters Screen CDOR (Certificate of Deposit Offered Rate) page,
as determined as at 10:00 a.m. (Toronto time) on the relevant Business Day (for
non-Business Days, and if no CDOR rate is available for a given Business Day,
the CDOR rate for the immediately previous Business Day for which a CDOR rate is
available shall be used)
"BA Interest Period" shall mean, relative to any Bankers
Acceptance or BA Equivalent Loan, the period beginning on (and including) the
date on which such Bankers Acceptance is accepted or continued or such BA
Equivalent Loan is made or continued to (but excluding) the date which is 30, 60
or 90 days thereafter, as selected by the Company.
"Bankers' Acceptance" shall mean a non-interest bearing ▇▇▇▇ of
exchange in a form satisfactory to the Agent, denominated in CAD, drawn and
endorsed by a Canadian Borrowing Subsidiary and presented to each Canadian
Lender for acceptance pursuant to this Agreement.
"BMG" shall mean BMG North America Limited, a corporation
incorporated under the laws of the Province of Ontario, Canada.
"BMO" shall mean Bank of Montreal, a Canadian chartered bank.
"Board of Directors" shall mean the board of directors of the
Company.
"Borrowing" shall mean the aggregation of Advances, including each
Letter of Credit and Bankers' Acceptance issuance, of the Lenders made to any
Borrower, or continuations and conversions of any Advances, made pursuant to
Article II on a single date and, in the case of any LIBOR Loans or Bankers'
Acceptances, for a single Interest Period, which Borrowings may be classified
for purposes of this Agreement by reference to the type of Loans or the type of
Advance comprising the related Borrowing, e.g., a "LIBOR Borrowing" is a
Borrowing comprised of LIBOR Loans and a "Letter of Credit Borrowing" is an
Advance comprised of a single Letter of Credit.
"Borrowing Base" shall mean, as of any date, the sum of:
(a) an amount equal to 85% of the value of Eligible Accounts
Receivable, plus
(b) an amount equal to 50% of the value of Eligible Deferred
Tooling Reimbursement Payments, plus
(c) an amount equal to 50% of the value of Eligible Inventory,
plus
(d) an amount of fixed asset reliance equal to the sum of the
following: (i) $113,562,000, (ii) 50% of the net book value of Eligible Fixed
Assets acquired after February 4, 1999 but prior to March 31, 2000, plus (iii)
an amount equal to the sum of 70% of the orderly liquidation value determined by
the Agent for equipment which constitutes Eligible Fixed Assets acquired after
February 4, 1999 in an Acquisition permitted by Section 5.2(g) and 70% of the
fair market value determined by the Agent for real estate which constitutes
Eligible Fixed Assets acquired in an Acquisition permitted by Section 5.2(g)
consummated after February 4, 1999; minus
(e) $30,000,000; minus
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(f) until such time as the construction and acquisition of the
Mexican Manufacturing Facility has been substantially completed, an amount equal
to the remaining cost to complete the acquisition, construction and equipping of
the Mexican Manufacturing Facility, and as described by the Company to the Agent
prior to the Effective Date (it being acknowledged that as of the Effective Date
the cost of such acquisition, construction and equipping is approximately
$75,000,000, and the cost to complete is $75,000,000 minus the amount paid for
such acquisition, construction or equipping from financing under the Mexican
Facility as of the date of any Borrowing Base determination).
"Borrowing Base Certificate" for any date shall mean an
appropriately completed report as of such date in substantially the form of
Exhibit A hereto, certified as true and correct as of such date by the Chief
Financial Officer or Treasurer of the Company.
"Borrowing Subsidiary" shall mean any Subsidiary designated by the
Company to the Agent as a "Borrowing Subsidiary" hereunder so long as (a) each
of the Company and each Guarantor guarantees the obligation of such Borrowing
Subsidiary pursuant to a Guaranty, and grants a first priority lien and security
interest on its assets to the extent required under Section 2.11 to secure such
Guaranty and all obligations of such Borrowing Subsidiary, (b) such Borrowing
Subsidiary delivers all corporate or organizational documents and authorizing
resolutions and legal opinions requested by the Agent and (c) such Borrowing
Subsidiary executes all agreements, instruments and documents and takes such
other action requested by the Agent, including without limitation becoming bound
by the terms hereof as a Borrowing Subsidiary and granting a first priority lien
and security interest on its assets to the extent required under Section 2.11 to
secure all Advances and other obligations of such Borrowing Subsidiary to the
Lenders and the Agent. As of the Effective Date, the only Borrowing Subsidiaries
are BMG and Oxford Suspension Ltd..
"Business Day" shall mean a day other than a Saturday, Sunday or
other day on which the Agent is not open to the public for carrying on
substantially all of its banking functions in Detroit, Michigan or, with respect
to any Canadian Advance, First Chicago/NBD Canada is not open to the public for
carrying on substantially all of its banking functions in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
"CAD" or "C$" shall mean the lawful money of Canada.
"Canadian Advances" shall mean all Loans, including Acceptances,
denominated in CAD.
"Canadian Borrowing Subsidiary" shall mean any Borrowing
Subsidiary which is also a Canadian Subsidiary.
"Canadian Intercreditor Agreement" shall mean the intercreditor
agreement in form and substance satisfactory to the Agent among the Agent, BMG
and all other material lenders to BMG or any of its Subsidiaries, as amended or
modified from time to time.
"Canadian Lender" shall mean any Lender which, whether directly or
through an Affiliate of such Lender, can make Canadian Advances hereunder free
of withholding taxes of Canada and that is designated from time to time by the
Agent and the Company, with the consent of such Lender, as a Canadian Lender.
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"Canadian Percentage" of any Canadian Lender as of any date, shall
mean a fraction (expressed as a percentage), the numerator of which is the
Commitment of such Canadian Lender and the denominator which is the aggregate
Commitments of all Canadian Lenders.
"Canadian Subsidiary" shall mean any Subsidiary of the Company
organized under the laws of Canada or any Province thereof.
"Capital Expenditures" shall mean, without duplication, any
expenditures, other than under a Capital Lease, for any purchase or other
acquisition of any asset which would be classified as a fixed or capital asset
on a consolidated balance sheet of the Company and its Subsidiaries prepared in
accordance with Generally Accepted Accounting Principles.
"Capital Lease" of any Person shall mean any lease which, in
accordance with Generally Accepted Accounting Principles, is or should be
capitalized on the books of such Person.
"Capital Stock" shall mean (i) in the case of any corporation, all
capital stock and any securities exchangeable for or convertible into capital
stock and any warrants, rights or other options to purchase or otherwise acquire
capital stock or such securities or any other form of equity securities, (ii) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distribution of assets of, the issuing
Person.
"Change in Control" shall mean:
(a) prior to a primary sale or sales of shares of Capital Stock
of the Company resulting in the sale of more than 50% of each class of
outstanding Capital Stock of the Company pursuant to any one or more public
offerings thereof (a "Majority IPO"), (i) Permitted Holders shall cease to
control, directly or indirectly, in each case free and clear of all Liens, at
least 35% (on a fully diluted basis) of the issued and outstanding shares of
Voting Stock of the Company and have the right and authority to appoint,
designate or otherwise elect at least 51% of the members of the Board of
Directors of the Company or (ii) other than the Permitted Holders, any Person,
or two or more Persons acting in concert, acquire or own beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934) of an amount of the outstanding
shares of Voting Stock of the Company on a fully diluted basis which is equal to
or greater than the amount owned by the Permitted Holders;
(b) after a Majority IPO, (i) Permitted Holders shall cease to
control, directly or indirectly, in each case free and clear of all Liens, at
least 20% (on a fully diluted basis) of the issued and outstanding shares of
Voting Stock of the Company and have the right and authority to appoint,
designate or otherwise elect at least 20% of the members of the Board of
Directors of the Company or (ii) any Person, or two or more Persons acting in
concert, acquire or own beneficial ownership (within the meaning of Rule 13d-3
of the Securities and Exchange Commission under the Securities Exchange Act of
1934) of an amount of the outstanding shares of Voting Stock of the Company on a
fully diluted basis which is equal to or greater than the amount owned by the
Permitted Holders; or
(c) after the first public offering of Capital Stock of the
Company, during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of
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directors (together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the Company
was approved by a majority vote of the directors of the Company then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors then in office; or
(d) any "Change of Control" as defined in the Senior Subordinated
Note Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
and the regulations thereunder.
"Cofimeta" shall mean Cofimeta, S.A., a societe anonyme organized
and existing under the laws of France.
"Cofimeta Acquisition" shall mean the Acquisition to be completed
pursuant to the Cofimeta Acquisition Documents.
"Cofimeta Acquisition Date" shall mean February 5, 1999, the date
on which the Cofimeta Acquisition was completed.
"Cofimeta Acquisition Documents" shall mean the agreements dated
on or about December 15, 1998 between the Company and Groupe Valfond, together
with all agreements, documents and instruments executed in connection therewith
or otherwise pursuant thereto, under which the French Acquisition Company will
acquire 100% of the Capital Stock of Cofimeta.
"Commitments" shall mean, collectively, the Revolving Credit
Commitments, the Tooling Revolving Credit Commitments and the Term Loan
Commitments.
"Company Security Agreement" shall mean the security agreement
entered into by the Company for the benefit of the Agent and the Lenders
pursuant to this Agreement in substantially the form of Exhibit B hereto, as
amended or modified from time to time.
"Consolidated" or "consolidated" shall mean, when used with
reference to any financial term in this Agreement, the aggregate for two or more
Persons of the amounts signified by such term for all such Persons determined on
a consolidated basis in accordance with Generally Accepted Accounting
Principles.
"Contingent Liabilities" of any Person shall mean, as of any date
and without duplication, all obligations of others for which such Person is
contingently liable, as guarantor, surety, accommodation party, partner or in
any other capacity, or in respect of which obligations such Person assures a
creditor against loss or agrees to take any action to prevent any such loss
(other than endorsements of negotiable instruments for collection in the
ordinary course of business), including without limitation all reimbursement
obligations of such Person in respect of any letters of credit, surety bonds or
similar obligations and all obligations of such Person to advance funds to, or
to purchase assets, property or services from, any other Person in order to
maintain the financial condition of such other Person.
"Creative" shall mean Creative Fabrication Corporation, a
Tennessee corporation.
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"Creative Letter of Credit" shall mean the irrevocable letter of
credit number 442 issued by NBD Bank on September 27, 1995 for the account of
Creative, as renewed or extended or otherwise modified from time to time.
"Creative Revenue Bond" shall mean the $8,500,000 Industrial
Development Revenue Bond (Creative Fabrication Corporation Project), Series 1995
issued by the Industrial Development Board of the County of ▇▇▇▇▇▇, a public
non-profit corporation and public instrumentality of the County of ▇▇▇▇▇▇,
Tennessee.
"Creative Revenue Bond Documents" shall mean the indenture of
trust, loan agreement, reimbursement agreement, irrevocable letter of credit,
pledge and security agreement, deed of trust, security agreement, fixture filing
and assignment of rents, security agreement, guarantor security agreement,
irrevocable guaranty agreement and all other agreements and documents executed
or issued in connection with the Creative Revenue Bond, all as amended or
modified from time to time.
"Default" shall mean any event or condition which might become an
Event of Default with notice or lapse of time or both.
"Defaulting Lender" shall mean any Lender that fails to make
available to the Agent such Lender's Loans required to be made hereunder or
shall have not made a payment required to be made to the Agent hereunder. Once a
Lender becomes a Defaulting Lender, such Lender shall continue as a Defaulting
Lender until such time as such Defaulting Lender makes available to the Agent
the amount of such Defaulting Lender's Loans and all other amounts required to
be paid to the Agent pursuant to this Agreement.
"Discount Rate" shall mean with respect to Bankers' Acceptances
issued pursuant to this Agreement with the same maturity date, the rate
determined by the Agent as being the discount rate, calculated on the basis of a
year of 365 days, of the Agent established in accordance with its normal
practices at or about 10:00 a.m. on the date of issue of such Bankers'
Acceptances, for bankers' acceptances having a comparable face value and an
identical maturity date to the face value and maturity date of the Agent's
portion of such issue of Bankers' Acceptances.
"Discounted Proceeds" shall mean in respect of any Bankers'
Acceptance to be accepted and purchased by a Lender hereunder on any day, an
amount (rounded to the nearest whole cent, and with one-half of one cent being
rounded up) calculated on such day by multiplying (i) the face amount of such
Bankers' Acceptance by (ii) the price, where the price is determined by dividing
one by the sum of one plus the product of (A) the Discount Rate (expressed as a
decimal) and (B) a fraction, the numerator of which is the number of days in the
term of such Bankers' Acceptance and the denominator of which is 365.
"Disqualified Stock" shall mean any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, or which
otherwise has any mandatory payments with respect thereto.
"Dollar Equivalent" shall mean as of any date, with respect to any
amount in a currency other than Dollars, the sum in Dollars resulting from the
conversion of such amount from such currency into Dollars at the spot exchange
rate determined by the Agent to be available to it for the purchase of such
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currency with Dollars at approximately 11:00 a.m. local time of the Applicable
Lending Office on such date as a determination of the Dollar Equivalent is made.
"Documents" shall have the meaning ascribed thereto in Section
3.3(b).
"Dollars" and "$" shall mean the lawful money of the United States
of America.
"Domestic Subsidiary" shall mean each present and future
Subsidiary of the Company which is not a Foreign Subsidiary.
"Dutch Holding Company" shall mean a Subsidiary of the Company and
wholly owned directly by the Company or by a Guarantor, which Subsidiary is
organized under the laws of the Netherlands and formed after the Effective Date
to, among other purposes, own 100% of the Capital Stock, free and clear of any
Liens other than in favor of the Agent, of the French Acquisition Company,
provided that such Subsidiary satisfies all the requirements of this Agreement.
The Dutch Holding Company shall be deemed a Restricted Subsidiary.
"EBITDA" shall mean, for any period, the Net Income for such
period plus, without duplication, all amounts deducted in determining such Net
Income on account of (a) Interest Expense, (b) income tax expense (including
Michigan Single Business Tax expense), (c) depreciation and amortization
expense, and (d) all other non cash items reducing Net Income (other than items
that will require cash payments and for which an accrual or reserve is, or is
required under Generally Accepted Accounting Principles to be, made, except as
otherwise consented to by the Agent), and minus all non cash items increasing
Net Income, in each case for such period, all as determined for the Company and
its Subsidiaries on a consolidated basis in accordance with Generally Accepted
Accounting Principles.
"Effective Date" shall mean the effective date specified in the
final paragraph of this Agreement.
"Eligible Accounts Receivable" shall mean, as of any date and
without duplication, those trade accounts receivable owned by a Borrower or a
Guarantor that are payable in Dollars, CAD or any other readily available and
freely tradable currency acceptable to the Agent and in which such Borrower or
Guarantor has granted to the Agent for the benefit of the Lenders and the Agent
a first-priority perfected security interest pursuant to the Security
Agreements, subject to only such Liens as are permitted Section 5.2(f)(i),
valued at the face amount thereof less sales, excise or similar taxes and less
returns, discounts, claims, credits and allowances of any nature at any time
issued, owing, granted, outstanding, available or claimed, but shall not include
any such account receivable (a) that is not a bona fide existing obligation
created by the sale and actual delivery of inventory, goods or other property,
or the furnishing of services or other good and sufficient consideration to
customers of a Borrower or a Guarantor in the ordinary course of business, (b)
that is more than 90 days past due or that remains outstanding more than 90 days
after the earlier of the date of the invoice or the shipment of the related
inventory, goods or other property or the furnishing of the related services or
other consideration, (c) that is subject to any dispute, contra-account,
defense, offset or counterclaim or any Lien (except those in favor of the Agent
for the benefit of the Lenders and the Agent under the Security Documents), or
the inventory, goods, property, services or other consideration of which such
account receivable constitutes proceeds is subject to any such Lien, (d) in
respect of which the inventory, goods, property, services or other consideration
have been rejected, (e) that is due from any Affiliate or Subsidiary of any
Borrower or Guarantor, (f) that has been classified by any Borrower or Guarantor
as doubtful or has otherwise failed to meet established or customary credit
standards of any Borrower or Guarantor, (g) that is payable
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by any Person located outside the United States or Canada (which shall not be
deemed to include any territories of the United States or Canada), other than a
Subsidiary of General Motors Corporation, Ford Motor Company or DaimlerChrysler
AG, or any other substantial auto manufacturer or supplier approved by the
Agent, (h) with respect to which any representation or warranty contained in
Section 4.11 is incorrect at any time, (i) that is payable by the United States
or any of its departments, agencies or instrumentalities or by any state or
other governmental entity unless such Borrower or Guarantor shall have notified
the Agent thereof and shall have executed and delivered any and all instruments
and documents and taken such other action required by the Agent to duly effect
the assignment thereof to the Agent under the Federal Assignment of Claims Act,
as amended, or other applicable law now or hereafter in effect, (j) that is
payable by any Person as to which 30% or more of the accounts receivable payable
by such Person to any Borrower or Guarantor do not otherwise constitute Eligible
Accounts Receivable, (k) that is payable by any Person that is the subject of
any proceeding seeking to adjudicate it a bankrupt or insolvent or seeking
liquidation, winding up or reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief or protection of debtors or seeking the
appointment of a receiver, trustee, custodian or other similar official for it
or for any substantial part of its property, or that is not generally paying its
debts as they become due or has admitted in writing its inability to pay its
debts generally or has made a general assignment for the benefit of creditors,
(l) that is evidenced by a promissory note or other instrument, (m) that is
subordinate or junior in right or priority of payment to any other obligation or
claim, (n) arising as a result of or relating to Tooling if such account
receivable is not currently due or arising as a result of or relating to Tooling
if it arises under any Tooling Contract financed by any lender other than by
Advances by the Lenders under this Agreement, or (o) that for any other reason
is at any time reasonably deemed by the Agent to be ineligible.
"Eligible Deferred Tooling Reimbursement Payments" shall mean such
portion assets, net of any payments received thereon, of a Borrower or Guarantor
which consists of Tooling reimbursement payments provided that each of the
following conditions are satisfied: (a) the sale of the related Tooling is
covered under specific written purchase orders or agreements between a Borrower
or Guarantor and the purchaser of such Tooling, and the terms and provisions of
all such purchase orders and agreements and the purchaser thereof must be
satisfactory to the Agent, (b) the Agent has a first priority, perfected and
enforceable security interest in the Borrower's or Guarantor's interest in such
assets, including without limitation, any account receivable or other proceeds
of a Borrower or Guarantor relating to such long term assets, subject to only
such Liens as are permitted by Section 5.2(f)(i), (c) the unpaid balance of such
Tooling as represented by a Borrower or Guarantor is not subject to any defense,
counterclaim, setoff, contra-account, credit, allowance or adjustment and (d)
such Tooling has been constructed in accordance with the requirements and other
terms of such purchase orders and other agreements relating thereto and the
purchaser thereof has approved such Tooling and is not disputing the
acceptability of such Tooling. For purposes of this definition, all Tooling
reimbursement payments of a Borrower or Guarantor which are the subject of any
Tooling Contract financed by any lender other than by Advances by the Lenders
under this Agreement shall be excluded from this definition and no (i) Eligible
Inventory or (ii) accounts receivable included within Eligible Accounts
Receivable shall be included as part of Eligible Deferred Tooling Reimbursement
Payments.
"Eligible Fixed Assets" shall mean, as of any date, those tangible
fixed assets owned by a Borrower or a Guarantor in which such Borrower or
Guarantor has granted to the Agent and Lenders a first-priority perfected
security interest pursuant to the Security Agreements, subject to only such
Liens as are permitted Section 5.2(f)(i), but not including any such fixed asset
(a) that is not usable in the business of a Borrower or Guarantor, (b) that is
located outside the United States or Canada or such other jurisdiction approved
by the Agent, (c) that is subject to, or any accounts or other proceeds
resulting
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from the sale or other disposition thereof could be subject to, any Lien
(except those in favor of the Agent and the Lenders under the Security
Agreements), (d) that is not in the possession of the Company, (e) that is held
for sale or lease or is the subject of any lease, (f) that is subject to any
trademark, trade name or licensing arrangement, or any law, rule or regulation,
that could limit or impair the ability of the Agent and the Lenders to promptly
exercise all rights of the Agent and the Lenders under the Security Agreements,
(g) if such fixed asset is located on premises not owned by the Company and the
landlord or other owner of such premises shall not have waived its distraint,
lien and similar rights with respect to such fixed asset, and shall not have
agreed to permit the Agent to enter such premises after the occurrence of an
Event of Default pursuant to a waiver and agreement of such Person in favor of
and in form and substance acceptable to the Agent, (h) with respect to which
any insurance proceeds are not payable to the Agent as a lender loss payee or
are payable to any loss payee other than the Agent or a Borrower or Guarantor,
and (i) that for any other reason is at any time reasonably deemed by the Agent
to be ineligible.
"Eligible Inventory" shall mean, as of any date, that inventory
owned by a Borrower or a Guarantor that constitutes raw materials,
work-in-process or finished goods in which such Borrower or Guarantor has
granted to the Agent for the benefit of the Lenders and the Agent a
first-priority perfected security interest pursuant to the Security Agreements,
subject to only such Liens as are permitted Section by 5.2(f)(i), valued at the
lower of cost or market on a FIFO basis, but shall not include any such
inventory (a) that does not constitute raw materials, work-in-process or
finished goods readily salable or usable in the business of a Borrower or a
Guarantor, (b) that is located outside the United States or Canada (which shall
not be deemed to include any territories of the United States or Canada) or such
other jurisdiction approved by the Agent, (c) that is subject to, or any
accounts or other proceeds resulting from the sale or other disposition thereof
could be subject to, any Lien (except those in favor of the Agent for the
benefit of the Lenders and the Agent under the Security Documents), including
any sale on approval or sale or return transaction or any consignment, (d) that
is not in the possession of such Borrower or Guarantor, (e) that is held for
lease or is the subject of any lease, (f) that is subject to any trademark,
trade name or licensing arrangement, or any law, rule or regulation, that could
limit or impair the ability of the Agent to promptly exercise all rights of the
Agent under the Security Documents, (g) if such inventory is located on premises
not owned by such Borrower or Guarantor and the landlord or other owner of such
premises shall not have waived its distraint, lien and similar rights with
respect to such inventory and shall not have agreed to permit the Lenders and
the Agent to enter such premises pursuant to a waiver and agreement of such
Person in favor of and in form and substance acceptable to the Lenders and the
Agent or any other substantial auto manufacturer or supplier approved by the
Agent, (h) with respect to which any insurance proceeds are not payable to the
Agent for the benefit of the Lenders as a lender loss payee or are payable to
any loss payee other than the Agent or such Borrower or Guarantor, (i) that is
classified as Eligible Deferred Tooling Reimbursement Payments, (j) that is
Tooling unless such Tooling qualifies as Eligible Tooling, or (k) that for any
other reason is at any time reasonably deemed by the Agent to be ineligible.
"Eligible Tooling" shall mean such portion of assets, net of any
payments received thereon, of a Borrower or Guarantor which consists of Tooling,
provided that each of the following conditions is satisfied: (a) the sale of
such Tooling is covered under specific written purchase orders or agreements
between a Borrower or Guarantor and the purchaser of such Tooling, and the terms
and provisions of all such purchase orders and agreements and the purchaser
thereof must be satisfactory to the Agent, (b) the Agent has a first priority,
perfected and enforceable security interest in such Borrower's or Guarantor's
interest in such Tooling and any account receivable or other proceeds of a
Borrower or Guarantor relating to such Tooling, subject to only such Liens as
are permitted by Section 5.2(f)(i), and (c) the unpaid balance of such Tooling
as represented by a Borrower or Guarantor is not
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subject to any defense, counterclaim, setoff, contra-account, credit, allowance
or adjustment. For purposes of this definition, all Tooling of a Borrower or
Guarantor which is the subject of any Tooling Contract financed by any lender
other than by Advances by the Lenders under this Agreement shall be excluded
from this definition, and no (i) accounts receivable included within Eligible
Accounts Receivable, or (ii) Eligible Deferred Tooling Reimbursement Payments
shall be included as part of Eligible Tooling.
"Environmental Certificate" shall mean the environmental
certificate given by the Borrowers and the Guarantors to the Agent for the
benefit of the Lenders pursuant to this Agreement in substantially the form of
Exhibit C hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations thereunder.
"ERISA Affiliate" shall mean, with respect to any Person, any
trade or business (whether or not incorporated) which, together with such Person
or any Subsidiary of such Person, would be treated as a single employer under
Section 414 of the Code and the regulations promulgated thereunder.
"Event of Default" shall mean any of the events or conditions
described in Section 6.1.
"Existing Credit Agreement" is defined in the recital paragraph of
this Agreement.
"Existing Letters of Credit" shall mean the letters of credit set
forth on Schedule 1.1(A).
"Federal Funds Rate" shall mean the per annum rate established and
announced by the Agent from time to time as the opening federal funds rate paid
by the Agent in its regional federal funds market for overnight borrowings from
other banks, which Federal Funds Rate shall change simultaneously with any
change in such announced rates.
"First Chicago/NBD Canada" shall mean First Chicago NBD Bank,
Canada, a Canadian chartered bank, and its successors and assigns.
"Fixed Charges" shall mean, for any period, the sum, without
duplication, of (a) Total Covenant Interest Expense for such period, plus (b)
all payments of principal or other sums paid or payable during such period by
the Company or its Restricted Subsidiaries with respect to Indebtedness of the
Company or its Restricted Subsidiaries, other than payments on the Revolving
Credit Advances and Tooling Revolving Credit Advances, plus (c) Rental Charges
paid or payable during such period by the Company and its Restricted
Subsidiaries, plus (d) all dividends, distributions and other obligations paid
with respect to any class of the Company's Capital Stock or any dividend,
payment or distribution paid in connection with the redemption, purchase,
retirement or other acquisition, directly or indirectly, of any shares of the
Company's Capital Stock, plus (e) all net income taxes accrued in such period by
the Company or its Restricted Subsidiaries, plus (f) all payments of principal
or other sums paid or payable, whether directly or indirectly, during such
period by the Company or any of its Restricted Subsidiaries with respect to
Indebtedness of any Unrestricted Subsidiary, plus (g) all payments on the
Mexican Facility Obligations allocable to principal.
"Fixed Charge Coverage Ratio" shall mean, as of the end of any
fiscal quarter of the Company, the ratio of (a) Total Covenant EBITDA for the
four consecutive fiscal quarters of the
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Company then ending, plus, to the extent not added back to such Total Covenant
EBITDA, Rental Charges for the four consecutive fiscal quarters of the Company
then ending, minus Capital Expenditures (exclusive of (i) for purposes of this
definition, the Mexican Facility Obligations in an amount not to exceed
$75,000,000 shall not constitute Capital Expenditures, (ii) up to $5,000,000 of
Capital Expenditures for the Saturn Innovate program in the fiscal year of the
Company ending ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) up to $5,000,000 of Capital Expenditures
for the Mexican GMT 250 program in the fiscal year of the Company ending March
31, 1999, (iv) up to $10,000,000 in aggregate amount of Capital Expenditures for
productivity improvement programs acceptable to the Agent in the fiscal years of
the Company ending March 31, 1999 and 2000 on a combined basis, and (v) up to
$10,000,000 in aggregate amount of Capital Expenditures for program specific
Capital Expenditures for programs not yet awarded or for changes to existing
programs which occur after the Effective Date, in each case acceptable to the
Agent and for each of the fiscal years of the Company ending March 31, 2001 and
2002) for the four consecutive fiscal quarters of the Company then ending, to
(b) the Fixed Charges for the four consecutive fiscal quarters of the Company
then ending.
"Floating Rate" shall mean the per annum rate equal to the sum of
(a) the Applicable Margin, plus (b) (i) with respect to U.S. Advances and other
obligations denominated in Dollars, the greater of (x) the Prime Rate in effect
from time to time, and (y) the sum of one half of one percent (1/2%) per annum
plus the Federal Funds Rate in effect from time to time; and (ii) with respect
to Canadian Advances and other obligations denominated in CAD, the greater of
(x) the per annum rate of interest quoted, published and commonly known as the
"prime rate" of First Chicago/NBD Canada which First Chicago/NBD Canada
establishes as the reference rate of interest in order to determine interest
rates for loans to its Canadian commercial borrowers, which rate is not
necessarily the lowest rate of interest offered by First Chicago/NBD Canada in
connection with extensions of credit; and (y) the BA Rate plus 1/2 of 1% per
annum; in each case adjusted automatically with each quoted or published change
in such rate, all without the necessity of any notice to any Borrower, which
Floating Rate shall change simultaneously with any change in any such rates.
"Floating Rate Loan" shall mean any Loan which bears interest at
the Floating Rate.
"Foreign Subsidiary" shall mean any Subsidiary incorporated or
formed in any jurisdiction other than any State of the United States of America.
"French Acquisition Company" shall mean Oxford Automotive France,
SAS, a societe par actions simplifiee organized and existing under the laws of
France.
"Generally Accepted Accounting Principles" shall mean generally
accepted accounting principles applied on a basis consistent with that reflected
in the financial statements referred to in Section 4.6.
"Guaranties" shall mean each guaranty entered into by the
Guarantors for the benefit of the Agent and the Lenders pursuant to this
Agreement in substantially the form of Exhibit D hereto, as amended or modified
from time to time.
"Guarantor Security Agreement" shall mean each security agreement
entered into by the Guarantors for the benefit of the Agent and the Lenders
pursuant to this Agreement in substantially the form of Exhibit E hereto, as
amended or modified from time to time.
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"Guarantors" shall mean each Domestic Subsidiary of the Company
existing as of the Effective Date, each Canadian Subsidiary, the Company (in its
capacity as guarantor of the Borrowing Subsidiaries), and each Person becoming a
Restricted Subsidiary of the Company after the Effective Date or otherwise
entering into a Guaranty from time to time; provided, however, that the Dutch
Holding Company, French Acquisition Company, the Mexican Subsidiaries, OPI,
Cofimeta and the Subsidiaries of Cofimeta existing as of the Effective Date
shall not be required to become Guarantors hereunder.
"Hedging Agreement" shall mean an agreement, device or arrangement
entered into by the Company or any of its Restricted Subsidiaries providing for
payments which are related to fluctuations of interest rates, currency exchange
rates or forward rates, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants.
"Hedging Obligations" of a Person shall mean any and all
obligations of such Person, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor), under (i) any
and all Hedging Agreements, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Hedging Agreement.
"Howell" shall mean Howell Industries, Inc., a Michigan
corporation.
"Indebtedness" of any Person shall mean, as of any date, (a) all
obligations of such Person for borrowed money, and similar monetary obligations
evidenced by bonds, notes, debentures, Capital Lease obligations, bankers
acceptances or otherwise, (b) all obligations of such Person as lessee under any
Capital Lease, (c) all obligations which are secured by any Lien existing on any
asset or property of such Person whether or not the obligation secured thereby
shall have been assumed by such Person, (d) all obligations of such Person for
the unpaid purchase price for goods, property or services acquired by such
Person, except for trade accounts payable and taxes arising in the ordinary
course of business that are not past due, (e) all obligations of such Person to
purchase goods, property or services where payment therefor is required
regardless of whether delivery of such goods or property or the performance of
such services is ever made or tendered (generally referred to as "take or pay
contracts"), (f) all Hedging Obligations, and (g) all Contingent Liabilities.
"Interest Coverage Ratio" shall mean, as of the end of any fiscal
quarter of the Company, the ratio of (a) Total Covenant EBITDA for the four
consecutive fiscal quarters of the Company then ending to (b) Total Covenant
Interest Expense for the four consecutive fiscal quarters of the Company then
ending.
"Interest Expense" shall mean, for any period, the total interest
expense of the Company and its consolidated Restricted Subsidiaries, plus, to
the extent not included in such total interest expense, and to the extent
incurred by the Company or its Restricted Subsidiaries, (i) interest expense
attributable to Capital Lease obligations, (ii) amortization of debt discount,
(iii) capitalized interest, (iv) non-cash interest expense, (v) commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, (vi) net costs associated with Hedging Agreements
(including amortization of fees), (vii) Preferred Stock dividends in respect of
all Preferred Stock held by Persons other than the Company or a Restricted
Subsidiary, and (viii) interest actually paid by the Company or any Restricted
Subsidiary on any Indebtedness of any other Person. Notwithstanding the
foregoing, net interest expense attributable to deferred reimbursement tooling
indebtedness, i.e., only that
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portion of Tooling Indebtedness to be paid by the purchaser of the related
Tooling in the piece price over the term of the related tooling contract
consistent with current practice, shall not be included in Interest Expense.
"Interest Payment Date" shall mean (a) with respect to any LIBOR
Loan or Acceptance, the last day of each Interest Period with respect thereto
and, in the case of any Interest Period exceeding three months, those days that
occur during such Interest Period at intervals of three months after the first
day of such Interest Period, and (b) in all other cases, the last Business Day
of each March, June, September and December occurring after the date hereof,
commencing with the first such Business Day occurring after the date of this
Agreement.
"Interest Period" shall mean any BA Interest Period or LIBOR
Interest Period.
"Letter of Credit" shall mean a standby or commercial letter of
credit issued by the Agent on behalf of the Lenders for the account of the
Company under an application and/or other documentation acceptable to the Agent
requiring, among other things, immediate reimbursement by the Company to the
Agent in respect of all drafts or other demand for payment honored thereunder
and all expenses paid or incurred by the Agent relative thereto, and shall
include the Creative Letter of Credit and all other Existing Letters of Credit.
"Letter of Credit Advance" shall mean each issuance of a Letter of
Credit.
"LIBOR" shall mean, with respect to any LIBOR Loan and the related
LIBOR Interest Period, the per annum rate that is equal to the sum of:
(a) the Applicable Margin, plus
(b) the rate per annum obtained by dividing (i) the per annum
rate of interest at which deposits in Dollars for such LIBOR Interest Period and
in an aggregate amount comparable to the amount of such LIBOR Loan to be made by
the Agent in its capacity as a Lender hereunder are offered to the Agent by
other prime banks in the London interbank market, at approximately 11:00 a.m.
London time, on the second LIBOR Business Day prior to the first day of such
LIBOR Interest Period by (ii) an amount equal to one minus the stated maximum
rate (expressed as a decimal) of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves)
that are specified on the first day of such LIBOR Interest Period by the Board
of Governors of the Federal Reserve System (or any successor agency thereto) for
determining the maximum reserve requirement with respect to eurocurrency funding
(currently referred to as "Eurocurrency liabilities" in Regulation D of such
Board) maintained by a member bank of such System; all as conclusively
determined by the Agent, such sum to be rounded up, if necessary, to the nearest
whole multiple of one one-hundredth of one percent (1/100 of 1%).
"LIBOR Business Day" shall mean, with respect to any LIBOR Loan, a
day which is both a Business Day and a day on which dealings in Dollar deposits
are carried out in the London interbank market.
"LIBOR Interest Period" shall mean, with respect to any LIBOR
Loan, the period commencing on the day such LIBOR Loan is made or converted to a
LIBOR Loan and ending on the day which is one, two, three or six months
thereafter (or such longer period requested by the Company and acceptable to the
Lenders), as the Company may elect under this Agreement, and each subsequent
period
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commencing on the last day of the immediately preceding LIBOR Interest Period
and ending on the day which is one, two or three months thereafter (or such
longer period requested by the Company and acceptable to the Lenders), as the
Company may elect under this Agreement, provided, however, that (a) any LIBOR
Interest Period which commences on the last LIBOR Business Day of a calendar
month (or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last LIBOR Business Day
of the appropriate subsequent calendar month, (b) each LIBOR Interest Period
which would otherwise end on a day which is not a LIBOR Business Day shall end
on the next succeeding LIBOR Business Day or, if such next succeeding LIBOR
Business Day falls in the next succeeding calendar month, on the next preceding
LIBOR Business Day, and (c) no LIBOR Interest Period which would end after the
Revolving Credit Termination Date with respect to any Revolving Credit Loan,
after the Maturity Date with respect to the Term Loan or after the Tooling
Revolving Credit Termination Date with respect to any Tooling Revolving Credit
Loan shall be permitted.
"LIBOR Loan" shall mean any Loan which bears interest at LIBOR.
"Lien" shall mean any pledge, assignment, hypothecation, mortgage,
security interest, deposit arrangement, option, conditional sale or title
retaining contract, sale and leaseback transaction, financing statement filing,
lessor's or lessee's interest under any lease, subordination of any claim or
right, or any other type of lien, charge, encumbrance, preferential arrangement
or other claim or right.
"Loan" shall mean any Revolving Credit Loan, any Tooling Revolving
Credit Loan, the Term Loan and any Swingline Loan. Any such Loan or any portion
thereof may also be denominated as a Floating Rate Loan, a Bankers' Acceptance
or BA Equivalent Loan or a LIBOR Loan and such Loans are referred to herein as
"types" of Loans.
"Loan Documents" shall mean, collectively, this Agreement, the
Notes, the Security Documents, any Hedging Agreements among any of the Borrowers
and any of the Lenders and any other agreement, instrument or document executed
in connection with any of the foregoing at any time, all as amended or modified
from time to time.
"▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corporation, a Michigan
corporation.
"▇▇▇▇▇▇▇ Preferred Stock" shall mean all existing preferred stock
issued by ▇▇▇▇▇▇▇, including the Series B Preferred Stock and Series A Preferred
Stock, in the aggregate amount of $50,700,000.
"▇▇▇▇▇▇▇ Preferred Stock Documents" shall mean all stock
certificates, agreements and other documents relating to the terms of the
Preferred Stock or otherwise relating to the Preferred Stock.
"Material Adverse Effect" shall mean (i) a material adverse effect
on the property, business, operations, financial condition, liabilities or
capitalization of the Company and its Restricted Subsidiaries, taken as a whole,
(ii) a material adverse effect on the ability of the Company or any Guarantor to
perform its obligations under the Loan Documents or (iii) a material adverse
effect on the rights and remedies of the Agent or the Lenders under the Loan
Documents.
"Maturity Date" shall mean the earlier to occur of (a) the date on
which the maturity of the Term Loan is accelerated pursuant to Section 6.2 and
(b) July 31, 2004.
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"Mexican Facility" shall mean the $75,000,000 Cross-Border Asset
Usage Facility of the Mexican Subsidiaries pursuant to the Mexican Facility
Documents.
"Mexican Facility Documents" shall mean the agreements and
documents described on Schedule 1.1(B).
"Mexican Facility Guaranty" shall mean the Guaranty dated March
31, 1999 executed by the Company in favor of the Mexican Trust guaranteeing the
lease payments of the Mexican Subsidiaries under the Asset Usage Agreement (as
defined on Schedule 1.1 (B)).
"Mexican Facility Obligations" shall mean all present and future
obligations and liabilities of any kind, direct, contingent or otherwise,
pursuant to the Mexican Facility Documents or otherwise under the Mexican
Facility.
"Mexican Facility Tranche A Lenders" shall mean the lenders of the
Mexican Facility Tranche A Loans.
"Mexican Facility Tranche A Guaranty" shall mean that portion of
the Mexican Facility Guaranty allocable to the Mexican Facility Tranche A Loans.
"Mexican Facility Tranche A Loans" shall mean the up to
$63,000,000 of Tranche A Loans made or to be made under, and as defined in, the
Mexican Facility Documents.
"Mexican Intercreditor Agreement" shall mean the intercreditor
agreement dated on or about the Effective Date in form and substance
satisfactory to the Agent among the Agent, BMO and all parties thereto, as
amended or modified from time to time.
"Mexican Manufacturing Facility" shall mean the ▇▇▇▇▇ Arizape
manufacturing facility of the Company to be located in Mexico as described by
the Company to the Agent prior to the Effective Date.
"Mexican Subsidiaries" shall mean Subsidiaries of the Company
described on Schedule 1.1(C), which are the only Subsidiaries of the Company
located in Mexico or organized or existing under the laws of Mexico or any
political subdivision thereof as of the Effective Date. The Mexican Subsidiaries
shall be deemed Restricted Subsidiaries.
"Mexican Trust" shall mean Oxford Automotive Business Trust
1999-A, a special purpose trust, and lessor under the Mexican Facility.
"Mexico" shall mean the United Mexican States.
"Multiemployer Plan" shall mean any "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"Net Cash Proceeds" shall mean, without duplication (a) in
connection with any sale or other disposition of any asset or any settlement by,
or receipt of payment in respect of, any property insurance claim or
condemnation award, the cash proceeds (including any cash payments received by
way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as and
when received) of such sale, settlement or payment, net of
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reasonable and documented attorneys' fees, accountants' fees, investment banking
fees, amounts required to be applied to the repayment of Indebtedness secured by
a Lien expressly permitted hereunder on any asset which is the subject of such
sale, insurance claim or condemnation award (other than any Lien in favor of the
Agent for the benefit of the Agent and the Lenders) and other customary fees
actually incurred in connection therewith and net of taxes paid or reasonably
estimated to be payable as a result thereof and (b) in connection with any
issuance or sale of any equity securities or debt securities or instruments or
the incurrence of loans, the cash proceeds received from such issuance or
incurrence, net of investment banking fees, reasonable and documented attorneys'
fees, accountants' fees, underwriting discounts and commissions and other
reasonable and customary fees and expenses actually incurred in connection
therewith.
"Net Income" shall mean, for any period, the net income of the
Company and its consolidated Restricted Subsidiaries; provided, however, that
there shall not be included in such Net Income: (i) any net income (or loss) of
any Person if such Person is not a Restricted Subsidiary, except that subject to
the exclusion contained in clause (iv) below, the Company's equity in the net
income of any such Person for such period shall be included in such Net Income
up to the aggregate amount of cash actually distributed by such Person during
such period to the Company or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution paid to a
Restricted Subsidiary, to the limitations contained in clause (ii) below); (ii)
any net income of any Restricted Subsidiary if such Restricted Subsidiary is
subject to restrictions, directly or indirectly, on the payment of dividends or
the making of distributions by such Restricted Subsidiary, directly or
indirectly, to the Company, except that (A) subject to the exclusion contained
in clause (iii) below, the Company's equity in the net income of any such
Restricted Subsidiary for such period shall be included in such Net Income up to
the aggregate amount of cash that could have been distributed by such Restricted
Subsidiary consistent with such restriction during such period to the Company or
another Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution paid to another Restricted
Subsidiary, to the limitation contained in this clause) and (B) the Company's
equity in a net loss of any such Restricted Subsidiary for such period shall be
included in determining such Net Income; (iii) any gain (or loss) realized upon
the sale or other disposition of any assets of the Company or its consolidated
Subsidiaries (including pursuant to any sale-and-leaseback arrangement) which is
not sold or otherwise disposed of in the ordinary course of business and any
gain (or loss) realized upon the sale or other disposition of any Capital Stock
of any Person; (iv) extraordinary or nonrecurring gains or non-cash losses; and
(v) the cumulative effect of a change in accounting principles.
"Net Worth" of any Person shall mean, as of any date, the amount
of any capital stock, paid in capital and similar equity accounts plus (or minus
in the case of a deficit) the capital surplus and retained earnings of such
Person, less treasury stock, all as determined under Generally Accepted
Accounting Principles; provided, however, that any foreign currency translation
adjustment account of the Company and its Subsidiaries shall be disregarded in
the calculation of Net Worth.
"Note" shall mean any Revolving Credit Note, any Tooling Revolving
Credit Note, any Term Loan Note or the Swingline Note.
"OASP I" shall mean OASP, Inc., a Michigan corporation, and
wholly-owned Subsidiary of the Company.
"OASP II" shall mean OASP II, Inc., a Michigan corporation, and
wholly owned Subsidiary of the Company.
"OPI" is defined on Schedule 4.26.
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"OPI Acquisition" shall mean the Acquisition of all outstanding
shares of OPI by the Company, a Guarantor (either an existing Guarantor or a
Guarantor to be formed after the date hereof), the French Acquisition Company,
Cofimeta or a wholly owned Foreign Subsidiary which is a Restricted Subsidiary,
provided that if any such Subsidiary is not a Guarantor such Subsidiary and each
Subsidiary which is not a Guarantor owning such Subsidiary, directly or
indirectly, shall not incur or maintain any Indebtedness (except as otherwise
permitted by this Agreement if such Subsidiary is the French Acquisition Company
or Cofimeta) and at least 65% of the Capital Stock of the Subsidiary owning OPI,
directly or indirectly, which is owned directly by a Guarantor or the Company
shall be pledged to the Agent, for the benefit of itself and the Lenders on a
first priority basis, by such Guarantor or the Company, as the case may be, and
all as further described on Schedule 4.26.
"Overdue Rate" shall mean (a) in respect of principal of Floating
Rate Loans, a rate per annum that is equal to the sum of three percent (3%) per
annum plus the Floating Rate, (b) in respect of principal of LIBOR Loans, a rate
per annum that is equal to the sum of three percent (3%) per annum plus the per
annum rate in effect thereon until the end of the then current Interest Period
for such Loan and, thereafter, a rate per annum that is equal to the sum of
three percent (3%) per annum plus the Floating Rate, and (c) in respect of other
amounts payable by the Company hereunder (other than interest), a per annum rate
that is equal to the sum of three percent (3%) per annum plus the Floating Rate.
"Oxford" shall mean The Oxford Investment Group, Inc., a Michigan
corporation.
"Oxford Suspension Ltd." shall mean Oxford Suspension Ltd., a
corporation incorporated under the laws of the Province of Ontario, Canada.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Permitted Disqualified Stock" is defined is Section 5.2(j).
"Permitted Holders" shall mean (i) any of ▇▇▇▇▇▇ ▇▇▇▇▇▇, his
spouse and any of his lineal descendants and their respective spouses
(collectively, the "Isakow Family") whether acting in their own name or as one
or as a majority of Persons having the power to exercise the voting rights
attached to, or having investment power over, shares held by others, (ii) any
Person wholly owned and controlled by any member of the Isakow Family, (iii) any
trust solely for the benefit of one or more members of the Isakow Family
(whether or not any member of the Isakow Family is a trustee of such trust) and
(iv) the individuals that are holders on the Effective Date of the voting common
stock of the Company.
"Permitted Liens" shall mean Liens permitted by Section 5.2(f)
hereof.
"Person" shall include an individual, a corporation, an
association, a partnership, a limited liability company, a trust or estate, a
joint stock company, an unincorporated organization, a joint venture, a trade or
business (whether or not incorporated), a government (foreign or domestic) and
any agency or political subdivision thereof, or any other entity.
"Plan" shall mean, with respect to any Person, any pension plan
(including a Multiemployer Plan) subject to Title IV of ERISA or to the minimum
funding standards of Section 412
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of the Code which has been established or maintained by such Person, any
Subsidiary of such Person or any ERISA Affiliate, or by any other Person if such
Person, any Subsidiary of such Person or any ERISA Affiliate could have
liability with respect to such pension plan.
"Planned Asset Sales" shall mean the manufacturing facility of
Creative in Athens, Tennessee.
"Pledge Agreement" shall mean each pledge agreement entered into
by the Company or any Guarantor for the benefit of the Agent and the Lenders
pursuant to this Agreement in form and substance satisfactory to the Agent, as
amended or modified from time to time.
"Preferred Stock" shall mean all ▇▇▇▇▇▇▇ Preferred Stock and all
other preferred stock or similar Capital Stock issued by the Company or any of
its Restricted Subsidiaries at any time.
"Prime Rate" shall mean the per annum rate announced by the Agent
from time to time as its "prime rate" (it being acknowledged that such announced
rate may not necessarily be the lowest rate charged by the Agent to any of its
customers); which Prime Rate shall change simultaneously with any change in such
announced rate.
"Prohibited Transaction" shall mean any transaction involving any
Plan which is proscribed by Section 406 of ERISA or Section 4975 of the Code.
"Rental Charges" shall mean the maximum amount of all rents and
other payments (exclusive of property taxes, property and liability insurance
premiums and maintenance costs) paid or required to be paid by the Company or
its Restricted Subsidiaries during such period under any lease of real or
personal property in respect of which the Company or its Restricted Subsidiaries
is obligated as a lessee or user, other than any Capital Lease.
"Reportable Event" shall mean a reportable event as described in
Section 4043(b) of ERISA including those events as to which the thirty (30) day
notice period is waived under Part 2615 of the regulations promulgated by the
PBGC under ERISA.
"Required Lenders" shall mean Lenders holding not less than (i)
51% (or 100% where required pursuant to Section 8.1) of the Commitments
(provided that, after the Term Loan is made, the amount of the Term Loan
Commitment shall be deemed equal to the outstanding principal balance of the
Term Loan for purposes of this definition), or (ii) 51% (or 100% where required
pursuant to Section 8.1) of the Advances if the Commitments have expired or been
terminated.
"Restricted Subsidiary" shall mean each Subsidiary of the Company
existing as of the Effective Date and described on Schedule 1.1(D) (including
the Guarantors and the Borrowing Subsidiaries) and each other Subsidiary of the
Company that is designated by the Company as a Restricted Subsidiary.
"Revolving Credit Advance" shall mean any Revolving Credit Loan
and any Letter of Credit Advance.
"Revolving Credit Commitments" shall mean, with respect to each
Lender, the commitment of each such Lender to make Revolving Credit Loans, and
to participate in Letter of Credit Advances and Swingline Loans, in amounts not
exceeding in the aggregate principal or face amount
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outstanding at any time the Revolving Credit Commitment amount for such Lender
set forth next to the name of such Lender on the signature pages hereof, or, as
to any Lender becoming a party hereto after the Effective Date, as set forth in
the applicable Assignment and Acceptance, in each case as reduced pursuant to
Section 2.2 or modified pursuant to Section 8.6.
"Revolving Credit Loan" shall mean any borrowing, including any
Bankers' Acceptance, under Section 2.4 evidenced by Revolving Credit Notes and
made pursuant to Section 2.1(a).
"Revolving Credit Note" shall mean any promissory note of a
Borrower evidencing the Revolving Credit Loans made to it in substantially the
form annexed hereto as Exhibit F, as amended or modified from time to time and
together with any promissory note or notes issued in exchange or replacement
therefor.
"Revolving Credit Termination Date" shall mean the earlier to
occur of (a) July 31, 2004 and (b) the date on which the Revolving Credit
Commitments shall be terminated pursuant to Section 2.2 or Section 6.2.
"Security Agreements" shall mean the Company Security Agreement
and the Guarantor Security Agreements.
"Security Documents" shall mean, collectively, the Security
Agreements, the Documents, the Environmental Certificate, the Creative Bond
Documents, the Guaranties, the Pledge Agreements, the subrogation and
contribution agreement among the Company and the Guarantors, any consent and
amendment of security documents executed by the Company or any of the Guarantors
and all other related agreements and documents, including mortgages, deeds of
trust, financing statements and similar documents, delivered pursuant to this
Agreement or otherwise entered into by any Person to secure or guarantee the
Advances or otherwise relating hereto, all as amended or modified from time to
time.
"Senior Subordinated Debt Documents" shall mean the Senior
Subordinated Note Indentures, the Senior Subordinated Notes and all agreements
and documents executed in connection therewith at any time, including without
limitation those agreements and documents listed on Schedule 1.1(E) hereto.
"Senior Subordinated Notes" shall mean the Senior Subordinated
Notes issued by the Company in the aggregate principal amount of $200,000,000
due 2007 issued pursuant to the Senior Subordinated Note Indentures.
"Senior Subordinated Note Indentures" shall mean, collectively,
the Senior Subordinated Indenture between the Company, the subsidiary guarantors
named therein and First Trust National Association, as trustee, dated as of June
24, 1997, as amended or modified from time to time and the Indenture between the
Company, the subsidiary guarantors named therein, and U.S. Bank Trust National
Association, as trustee, dated as of December 1, 1998, as amended or modified
from time to time.
"Solvent" when used with respect to any Person, shall mean that,
as of any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the amount of
all "liabilities of such Person, contingent or otherwise," as of such date, as
such quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such
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Person will, as of such date, be greater than the amount that will be required
to pay the liability of such Person on its debts as such debts become absolute
and matured, (c) such Person will not have, as of such date, an unreasonably
small amount of capital with which to conduct its business, and (d) such Person
will be able to pay its debts as they mature. For purposes of this definition,
(i) "debt" means liability on a "claim", and (ii) "claim" means any (x) right to
payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (y) right to an equitable remedy for
breach of performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
"Subordinated Debt" of any Person shall mean, as of any date, that
Indebtedness of such Person for borrowed money which is expressly subordinate
and junior in right and priority of payment to the Advances and other
Indebtedness of such Person to the Lenders in manner and by agreement
satisfactory in form and substance to the Agent and subject to such other terms
and provisions, including without limitation maturities, covenants, defaults,
rates and fees, acceptable to the Agent, and shall include, without limitation,
all indebtedness owing pursuant to the Senior Subordinated Debt Documents and
any Permitted Disqualified Stock.
"Subordinated Debt Documents" shall mean the Senior Subordinated
Debt Documents and any other agreement or document evidencing or relating to any
Subordinated Debt, whether under the Senior Subordinated Notes or any other
Subordinated Debt.
"Subsidiary" of any Person shall mean any other Person (whether
now existing or hereafter organized or acquired) in which (other than directors
qualifying shares required by law) at least a majority of the securities or
other ownership interests of each class having ordinary voting power or
analogous right (other than securities or other ownership interests which have
such power or right only by reason of the happening of a contingency), at the
time as of which any determination is being made, are owned, beneficially and of
record, by such Person or by one or more of the other Subsidiaries of such
Person or by any combination thereof. Unless otherwise specified, reference to
"Subsidiary" shall mean a Subsidiary of the Company.
"Swingline Facility" shall have the meaning specified in Section
2.1(d).
"Swingline Loan" shall mean any loan under Section 2.4 evidenced
by a Swingline Note and made by the Agent (including First Chicago/NBD Canada)
to a Borrower pursuant to Section 2.1(d).
"Swingline Note" shall mean any promissory note of a Borrower
evidencing the Swingline Loans in substantially the form of Exhibit G hereto, as
amended or modified from time to time and together with any promissory note or
notes issued in exchange or replacement therefor.
"Tax Sharing Agreement" shall mean any tax sharing or similar
agreement, if any, entered into between the Company and its Subsidiaries at any
time, as amended or modified from time to time. "Term Loan" shall mean the
single borrowing under Section 2.4 evidenced by the Term Notes and made to the
Company pursuant to Section 2.1(c).
"Term Loan Commitment" shall mean, with respect to each Lender,
the commitment of each Lender to make a portion of the Term Loan in an amount
not exceeding in the aggregate principal amount outstanding at any time the Term
Loan Commitment amount for such Lender set forth next to the
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name of such Lender on the signature pages hereof, or, as to any Lender becoming
a party hereto after the Effective Date, as set forth in the applicable
Assignment and Acceptance, in each case as reduced by payments on the Term Loan
or modified pursuant to Section 8.6.
"Term Loan Notes" shall mean the promissory notes of the Company
evidencing the Term Loan, in substantially the form of Exhibit H, as amended or
modified from time to time and together with any promissory note or notes issued
in exchange or replacement therefor.
"Tooling" shall mean dies, molds, tooling and similar items.
"Tooling Contract" shall mean any contract for the fabrication or
purchase of Tooling.
"Tooling Indebtedness" shall mean all present and future
Indebtedness of the Company and its Restricted Subsidiaries the proceeds of
which are utilized to finance Tooling for which the sales of such Tooling is
covered under specific written purchase orders or agreements between the Company
or any Subsidiary and the purchaser of such Tooling, which Indebtedness can be
and is being fully serviced by payments for such Tooling so financed and which
payments are not in dispute, all as determined by the Agent, and which
Indebtedness can be classified as "Tooling Indebtedness" under the Senior
Subordinated Debt Documents.
"Tooling Revolving Credit Borrowing Base" shall mean as of any
day, the sum of (a) an amount equal to 100% of the value of Eligible Deferred
Tooling Reimbursement Payments, plus (b) an amount equal to 100% of the value of
Eligible Tooling.
"Tooling Revolving Credit Commitments" shall mean, with respect to
each Lender, the commitment of each such Lender to make Tooling Revolving Credit
Loans in amounts not exceeding in the aggregate principal outstanding at any
time the Tooling Revolving Credit Commitment amount for such Lender set forth
next to the name of such Lender on the signature pages hereof, or, as to any
Lender becoming a party hereto after the Effective Date, as set forth in the
applicable Assignment and Acceptance, in each case as reduced pursuant to
Section 2.2 or modified pursuant to Section 8.6.
"Tooling Revolving Credit Loan" shall mean any borrowing under
Section 2.4 evidenced by the Tooling Revolving Credit Notes and made pursuant to
Section 2.1(b) for Tooling Indebtedness.
"Tooling Revolving Credit Notes" shall mean the promissory notes
of the Company evidencing the Tooling Revolving Credit Loans, in substantially
the form annexed hereto as Exhibit I, respectively, as amended or modified from
time to time and together with any promissory note or notes issued in exchange
or replacement therefor.
"Tooling Revolving Credit Termination Date" shall mean the earlier
to occur of (a) the date on which the maturity of the Tooling Revolving Credit
Loans is accelerated pursuant to Section 6.2 and (b) July 31, 2004.
"Total Covenant EBITDA" shall mean, for any period, EBITDA for
such period, provided that:
(a) to adjust for the impact on Net Income due to the
General Motors Corporation strike, (i) $3,200,000 shall be added to the amount
of EBITDA determined for the second calendar quarter of 1998; (b) (ii)
$3,300,000 shall be added to the amount of EBITDA determined for the
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third calendar quarter of 1998 and (iii) $1,300,000 shall be subtracted from the
amount of EBITDA determined for the fourth calendar quarter of 1998;
(b) to the extent deducted from such EBITDA and allowed
hereunder, payments by the Company and the Mexican Subsidiaries on the Mexican
Facility Obligations shall be added to Total Covenant EBITDA; and
(c) for any fiscal quarter ending on or before ▇▇▇▇▇ ▇▇,
▇▇▇▇, ▇▇▇▇▇▇, for purposes of determining Total Covenant EBITDA, EBITDA shall be
calculated excluding the Mexican Subsidiaries, provided that Total Covenant
EBITDA shall be reduced to the extent EBITDA as calculated for the Mexican
Subsidiaries only is less than any of the following amounts for the fiscal
quarter indicated: (i) negative $900,000 for the fiscal quarter ending ▇▇▇▇▇ ▇▇,
▇▇▇▇, (▇▇) negative $800,000 for the fiscal quarter ending June 30, 1999, (iii)
negative $600,000 for the fiscal quarter ending September 30, 1999, (iv)
negative $500,000 for the fiscal quarter ending December 31, 1999, and (v)
negative $600,000 for the fiscal quarter ending March 31, 2000.
"Total Covenant Interest Expense" shall mean, for any period,
Interest Expense, plus, to the extent not included in Interest Expense, the
interest component of all payments on the Mexican Facility Obligations, for such
period.
"Total Debt" shall mean, as of any date, each of the following, on
a consolidated basis for the Company and its Restricted Subsidiaries without
duplication: (a) all Indebtedness for borrowed money and similar monetary
obligations evidenced by bonds, notes, debentures, Capital Lease obligations,
bankers acceptances or otherwise, including without limitation all assumed
Indebtedness and all obligations in respect of the deferred purchase price of
properties or assets and the factoring of accounts receivable, in each case
whether direct or indirect; plus (b) all liabilities secured by any Lien
existing on property owned or acquired subject thereto, whether or not the
liability secured thereby shall have been assumed; plus (c) all reimbursements
obligations under outstanding letters of credit in respect of drafts which may
be presented or have been presented and have not yet been paid and are not
included in clause (a) above; plus (d) Permitted Disqualified Stock; plus (e)
all guarantees and all other Contingent Liabilities with respect to any of the
indebtedness, obligations or liabilities described in the foregoing clauses (a),
(b), (c) or (d), including without limitation all guarantees and other
Contingent Liabilities of the Company or any Restricted Subsidiary with respect
to any such indebtedness, obligations or liabilities of any Unrestricted
Subsidiaries; less (f) deferred reimbursement tooling indebtedness, i.e., only
that portion of Tooling Indebtedness to be paid by the purchaser of the related
Tooling in the piece price over the term of the related tooling contract
consistent with current practice; less (g) cash equivalents acceptable to the
Agent and cash of the Company and its Restricted Subsidiaries, less any book
overdrafts, bank overdrafts or similar items.
"Total Covenant Obligations" shall mean, as of any date, each of
the following, on a consolidated basis for the Company and its Restricted
Subsidiaries, without duplication: (a) Total Debt; plus (b) the outstanding
amount of all Mexican Facility Obligations.
"Total Covenant Obligations to Total Covenant EBITDA Ratio" shall
mean, as of the end of any fiscal quarter of the Company, the ratio of (a) Total
Covenant Obligations as of the end of such fiscal quarter to (b) Total Covenant
EBITDA for the four consecutive fiscal quarters of the Company then ending.
"U.S. Advances" shall mean all Loans denominated in Dollars and
all Letters of Credit.
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"U.S. Percentage" of any Lender as of any date, shall mean a
fraction (expressed as a percentage), the numerator of which is the difference
of (a) the Revolving Credit Commitment of such Lender on such date minus (b) the
Canadian Advances made by such Lender (including any Affiliate of such Lender)
which are outstanding as of such date, after giving effect to any Canadian
Advances to be made as of such date, and the denominator of which is the
difference of (i) the aggregate Revolving Credit Commitments of all Lenders
minus (ii) the aggregate Canadian Advances which are outstanding as of such
date.
"Unfunded Benefit Liabilities" shall mean, with respect to any
Plan as of any date, the net pension liability as determined under FAS 87.
"Unrestricted Guaranties" shall mean all Contingent Liabilities of
the Company or of any Guarantor with respect to any Indebtedness of any
Unrestricted Subsidiaries, which Contingent Liabilities shall be deemed
outstanding in an amount equal to the maximum amount that could be payable
thereunder.
"Unrestricted Subsidiary" shall mean any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary) which is not a
Restricted Subsidiary.
"Voting Stock" of a Person shall mean all classes of Capital Stock
of such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers,
trustees or similar individuals thereof.
"Wholly Owned Subsidiary" shall mean a Subsidiary all the Capital
Stock of which (other than directors' qualifying shares) is owned by the Company
and/or one or more other Wholly Owned Subsidiaries.
"Working Capital" of any Person shall mean, as of any date, the
amount, if any, by which the current assets of such Person exceeds the current
liabilities (exclusive of the current portion of long term debt) of such Person,
all as determined in accordance with Generally Accepted Accounting Principles.
"Year 2000 Issues" shall mean anticipated costs, problems and
uncertainties associated with the inability of certain computer applications to
effectively handle data including dates on and after January 1, 2000, as such
inability affects the business, operations and financial condition of the
Company and its Subsidiaries and of the Company and its Subsidiaries' material
customers, suppliers and vendors.
"Year 2000 Program" is defined in Section 4.25.
1.2 Other Definitions; Rules of Construction. As used herein, the
terms "Agent", "Lender", "Lenders", "Company", "Borrowing Subsidiary",
"Borrowers" and "this Agreement" shall have the respective meanings ascribed
thereto in the introductory paragraph of this Agreement. Such terms, together
with the other terms defined in Section 1.1, shall include both the singular and
the plural forms thereof and shall be construed accordingly. All computations
required hereunder and all financial terms used herein shall be made or
construed in accordance with Generally Accepted Accounting Principles unless
such principles are inconsistent with the express requirements of this
Agreement; provided that, if the Company notifies the Agent that the Company
wishes to amend any covenant in Article V to eliminate the effect of any change
in Generally Accepted Accounting Principles in the
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operation of such covenant (or if the Agent notifies the Company that the
Required Lenders wish to amend Article V for such purpose), then the Company's
compliance with such covenant shall be determined on the basis of Generally
Accepted Accounting Principles in effect immediately before the relevant change
in Generally Accepted Accounting Principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Company and the Required Lenders. Use of the terms "herein", "hereof", and
"hereunder" shall be deemed references to this Agreement in its entirety and not
to the Section or clause in which such term appears. References to "Sections"
and "subsections" shall be to Sections and subsections, respectively, of this
Agreement unless otherwise specifically provided. Notwithstanding anything
herein, in any financial statements of the Company or in Generally Accepted
Accounting Principles to the contrary, for purposes of calculating the
Applicable Margin and of calculating and determining compliance with the
financial covenants (both actual and pro forma) in Sections 5.2(a), (b), (c) and
(d), including defined terms used therein, (i) no Unrestricted Subsidiary shall
be consolidated with the Company and its other Subsidiaries and each
Unrestricted Subsidiary shall be treated as if it were an investment in an
unconsolidated Subsidiary and all income, liabilities and assets of each
Unrestricted Subsidiary shall be excluded from all such calculations and
determinations thereunder except to the extent expressly provided herein, and
(ii) any Acquisitions made by the Company or any of its Subsidiaries, including
through mergers or consolidations and including the incurrence of all Total
Covenant Obligations related thereto and any other related financial
transactions, during the period for which such financial covenants were
calculated shall be deemed to have occurred on the first day of the relevant
period for which such financial covenants and the Applicable Margin were
calculated on a pro forma basis acceptable to the Agent. Without limiting the
foregoing, EBITDA, Fixed Charges, Interest Expense, Total Covenant EBITDA and
Total Covenant Obligations, for purposes of the financial covenants contained in
Sections 5.2(b), (c) and (d) and of calculating the Applicable Margin, shall be
calculated as if the Cofimeta Acquisition and all Indebtedness incurred in
connection therewith shall have occurred on the first day of the relevant period
for which such financial covenants and the Applicable Margin were calculated on
a pro forma basis acceptable to the Agent.
ARTICLE II.
THE COMMITMENTS, THE SWINGLINE FACILITY
AND THE ADVANCES
2.1 Commitments of the Lenders and Canadian and Swingline
Facility.
(a) Revolving Credit Advances.
(i) U.S. Advances. Each Lender agrees, for itself only,
subject to the terms and conditions of this Agreement, to make Revolving Credit
Loans to the Company or any Borrowing Subsidiary pursuant to Section 2.4 and to
participate in Letter of Credit Advances to the Company or any Borrowing
Subsidiary pursuant to Section 2.4 and Section 3.3, from time to time from and
including the Effective Date to but excluding the Revolving Credit Termination
Date, denominated in Dollars and not to exceed in aggregate principal amount at
any time outstanding the respective amounts determined pursuant to Section
2.1(e).
(ii) Canadian Advances. (A) Each Canadian Lender agrees,
for itself only, subject to the terms and conditions of this Agreement, to make
Canadian Advances to the Company or the Canadian Borrowing Subsidiaries pursuant
to Section 2.4, from time to time from and including the Effective Date to but
excluding the Revolving Credit Termination Date, denominated in
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CAD not to exceed an aggregate principal amount at any time outstanding to the
Company and the Canadian Borrowing Subsidiaries the respective amounts
determined pursuant to Section 2.1(e).
(B) If on any date a Canadian Advance is to be made
to the Company or a Canadian Borrowing Subsidiary (x) such Canadian Advance may
not be made because the aggregate Revolving Credit Commitments of the Canadian
Lenders would be exceeded and (y) the amount by which such Revolving Credit
Commitments of the Canadian Lenders would be exceeded is less than or equal to
the aggregate unused Revolving Credit Commitments of Lenders that are not
Canadian Lenders, each Lender that is not a Canadian Lender shall make a U.S.
Advance to the Company on such date, if the conditions for such an Advance are
satisfied, and the proceeds of such U.S. Advance shall be simultaneously applied
to repay the outstanding U.S. Advances of the Canadian Lenders, in each case in
amounts such that, after giving effect to such Borrowing and repayments and the
Borrowing from the Canadian Lenders of the requested Canadian Advance, the
provisions of Section 2.1(e) will not be violated. If any Borrowing of U.S.
Advances is required pursuant to this Section 2.1(a)(ii)(B), the Company shall
notify the Agent in the manner provided for U.S. Advances in Section 2.4 and the
Agent will notify each Lender of the amount to be advanced by such Lender.
(b) Tooling Revolving Credit Loans. Each Lender agrees, for
itself only, subject to the terms and conditions of this Agreement, to make
Tooling Revolving Credit Loans to the Company or any Borrowing Subsidiary
pursuant to Section 2.4 from time to time from and including the Effective Date
to but excluding the Tooling Revolving Credit Termination Date, denominated in
Dollars or Canadian Dollars and not to exceed in aggregate principal amount at
any time outstanding the amount determined pursuant to Section 2.1(e).
(c) Term Loan. Each Lender agrees, for itself only, subject to
the terms and conditions of this Agreement, to make its portion of the Term Loan
to the Company at one time on or within five Business Days after the Effective
Date in an amount equal to its Term Loan Commitment.
(d) Swingline Loans. (i) Any Borrower may request the Agent to
make, and the Agent may, in its sole discretion, make Swingline Loans to the
Borrowers from time to time on any Business Day during the period from the
Effective Date until the Revolving Credit Termination Date in an aggregate
principal amount for all Borrowers not to exceed at any time the lesser of (A)
the Dollar Equivalent of $30,000,000 (the "Swingline Facility") and (B) the
aggregate amount of Revolving Credit Advances that could be but is not borrowed
as of such date. Each Lender's Revolving Credit Commitment shall be deemed
utilized by an amount equal to such Lender's pro rata share (based on such
Lender's Revolving Credit Commitment) of the Dollar Equivalent of each Swingline
Loan for purposes of determining the amount of Revolving Credit Advances
required to be made by such Lender, but no Lender's (including NBD Bank's)
Revolving Credit Commitment, shall be deemed utilized for purposes of
determining commitment fees under Section 2.3(a). Swingline Loans shall bear
interest at the Floating Rate. Within the limits of the Swingline Facility, so
long as the Agent, in its sole discretion, elects to make Swingline Loans, the
Borrowers may borrow and reborrow under this Section 2.1(d)(i). Swingline Loans
to the Borrowing Subsidiaries will be made by the Agent through its Affiliate
First Chicago/NBD Canada.
(ii) The Agent may at any time in its sole and absolute
discretion require that any Swingline Loan be refunded by a Revolving Credit
Loan which is a Floating Rate Borrowing from the Lenders (or the Canadian
Lenders in the case of a Swingline Loan to a Borrowing Subsidiary), and upon
written notice thereof by the Agent to such Lenders and the relevant Borrower,
such Borrower shall be deemed to have requested a Floating Rate Borrowing in an
amount equal to the
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amount of such Swingline Loan, and such Floating Rate Borrowing shall be made to
refund such Swing Line Loan. Each such Lender shall be absolutely and
unconditionally obligated to fund its pro rata share (based on such Lender's
Revolving Credit Commitment) of such Floating Rate Borrowing or, if applicable,
purchase a participating interest in the Swingline Loans pursuant to Section
2.1(d)(iii) and such obligation shall not be affected by any circumstance,
including, without limitation, (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender has or may have against the Agent,
First Chicago/NBD Canada or the Company or any if its Subsidiaries or anyone
else for any reason whatsoever; (B) the occurrence or continuance of a Default
or an Event of Default, subject to Section 2.1(d)(iii); (C) any adverse change
in the condition (financial or otherwise) of the Company or any of its
Subsidiaries; (D) any breach of this Agreement or any other agreement by any
other Lender, the Company or any Guarantor; or (E) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing
(including without limitation the Company's failure to satisfy any conditions
contained in Article II or any other provision of this Agreement).
(iii) If Floating Rate Loans may not be made by the Lenders
as described in Section 2.1(d)(ii) due to any Event of Default pursuant to
Section 6.1(h) or if the Lenders are otherwise legally prohibited from making
such Floating Rate Loans, then effective on the date each such Floating Rate
Loan would otherwise have been made, each Lender (or the Canadian Lenders in the
case of a Swingline Loan to a Borrowing Subsidiary) severally agrees that it
shall unconditionally and irrevocably, without regard to the occurrence of any
Default or Event of Default or any other circumstances, in lieu of deemed
disbursement of Loans, to the extent of such Lender's Revolving Credit
Commitment, purchase a participating interest in the Swingline Loans by paying
its participation percentage thereof. Each such Lender will immediately transfer
to the Agent, in same day funds, the amount of its participation. After such
payment to the Agent, each Lender shall share on a pro rata basis (calculated by
reference to its Revolving Credit Commitment) in any interest which accrues
thereon and in all repayments thereof. If and to the extent that any such Lender
shall not have so made the amount of such participating interest available to
the Agent, such Lender and the Borrowers severally agree to pay to the Agent
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by the Agent until the date such amount is paid to the
Agent, at (A) in the case of the Borrowers, the interest rate specified above
and (B) in the case of such Lender, the Federal Funds Rate for the first five
days after the date of demand by the Agent and thereafter at the interest rate
specified above.
(e) Limitation on Amount of Advances. Notwithstanding anything in
this Agreement to the contrary, (i) the Dollar Equivalent of the aggregate
principal amount of the Revolving Credit Advances made or participated in by any
Lender (which for any Lender includes all U.S. Advances and all Canadian
Advances by such Lender, whether directly by such Lender or through an Affiliate
of such Lender in the case of Canadian Advances) at any time outstanding shall
not exceed the amount of its respective Revolving Credit Commitment as of the
date any such Advance is made, (ii) the aggregate principal amount of Letter of
Credit Advances outstanding at any time shall not exceed $30,000,000 (iii) the
aggregate Dollar Equivalent of all Canadian Advances shall not exceed
$40,000,000 at any time, (iv) the sum of the Dollar Equivalent of the aggregate
Revolving Credit Advances plus the Dollar Equivalent of the aggregate amount of
Unrestricted Guaranties shall not exceed the aggregate Revolving Credit
Commitments, (v) the sum of the Dollar Equivalent of the aggregate Revolving
Credit Advances, plus the aggregate Tooling Revolving Credit Loans, plus the
aggregate Dollar Equivalent of the Unrestricted Guaranties, plus the outstanding
Swingline Loans and plus the aggregate outstanding amount of the Mexican
Facility Tranche A Loans shall not exceed the amount of the Borrowing Base, (vi)
the aggregate principal amount of the Tooling Revolving Credit Loans made by any
Lender at any time outstanding shall not exceed the amount of its respective
Tooling Revolving Credit Commitment as
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of the date any such Loan is made, (vii) the aggregate Tooling Revolving
Credit Loans shall not exceed the amount of the Tooling Revolving Credit
Borrowing Base, and (viii) the principal amount of the Term Loan made by any
Lender shall not exceed the amount of such Lenders Term Loan Commitment as of
the date the Term Loan is made.
(f) Amendment and Restatement. This Agreement amends and restates
the Existing Credit Agreement, and all Advances and Letters of Credit
outstanding under the Existing Credit Agreement shall constitute Advances and
Letters of Credit under this Agreement and all fees and other obligations
accrued under the Existing Credit Agreement will continue to accrue and be paid
under this Agreement, subject to the rates and amounts specified in this
Agreement. As stated in the Notes and the Security Documents, the Advances and
other obligations pursuant hereto are issued in exchange and replacement for the
Advances and other obligations under the Existing Credit Agreement, shall not be
a novation or satisfaction thereof and shall be entitled to the same collateral,
plus additional collateral as specified herein, with the same priority.
2.2 Termination and Reduction of Commitments. (a) The Company shall
have the right to terminate or reduce the Revolving Credit Commitments or the
Tooling Revolving Credit Commitments at any time and from time to time, provided
that (i) the Company shall give three Business Days' prior written notice of
such termination or reduction to the Agent specifying the amount and effective
date thereof, (ii) each partial reduction thereof shall be in a minimum amount
of $5,000,000 and in an integral multiple of $1,000,000 and shall reduce such
Commitments of all of the Lenders proportionately in accordance with the
respective Commitment amounts for each such Lender, (iii) no such termination or
reduction shall be permitted with respect to any portion of any such Commitments
as to which a request for an Advance pursuant to Section 2.4 is then pending,
(iv) the Revolving Credit Commitments may not be terminated if any Revolving
Credit Advances are then outstanding and may not be reduced below the principal
amount of Revolving Credit Advances and Swingline Loans then outstanding, and
(v) the Tooling Revolving Credit Commitments may not be terminated if any
Tooling Revolving Credit Loans are then outstanding and may not be reduced below
the principal amount of the Tooling Revolving Credit Loans then outstanding. The
Revolving Credit Commitments or Tooling Revolving Credit Commitments or any
portion thereof terminated or reduced pursuant to this Section 2.2, whether
optional or mandatory, may not be reinstated
(b) For purposes of this Agreement, a Letter of Credit Advance
(i) shall be deemed outstanding in an amount equal to the sum of the maximum
amount available to be drawn under the related Letter of Credit on or after the
date of determination and on or before the stated expiry date thereof plus the
amount of any draws under such Letter of Credit that have not been reimbursed as
provided in Section 3.3 and (ii) shall be deemed outstanding at all times on and
before such stated expiry date or such earlier date on which all amounts
available to be drawn under such Letter of Credit have been fully drawn, and
thereafter until all related reimbursement obligations have been paid pursuant
to Section 3.3. As provided in Section 3.3, upon each payment made by the Agent
in respect of any draft or other demand for payment under any Letter of Credit,
the amount of any Letter of Credit Advance outstanding immediately prior to such
payment shall be automatically reduced by the amount of each Loan deemed
advanced, if any, in respect of the related reimbursement obligation of the
Company.
2.3 Fees. (a) The Company agrees to pay to the Agent, for the benefit
of each Lender, a facility fee on the daily average amount (whether used or
unused) of its respective Revolving Credit Commitment and Tooling Revolving
Credit Commitment during each calendar quarter or portion thereof, for the
period from the Effective Date to but excluding the Revolving Credit Termination
Date with respect to the Revolving Credit Commitments and the Tooling Revolving
Credit Termination Date
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with respect to the Tooling Revolving Credit Commitments, at a rate equal to the
Applicable Margin in effect. Accrued facility fees shall be payable quarterly in
arrears on the last Business Day of each March, June, September and December,
commencing on the first such Business Day occurring after the Effective Date,
and on the Revolving Credit Termination Date and Tooling Revolving Credit
Termination Date.
(b) The Company agrees to pay to the Agent (i) with respect to
Letters of Credit, a fee computed at the Applicable Margin calculated on the
maximum amount available to be drawn from time to time under a Letter of Credit,
which fee shall be paid quarterly in arrears on the last Business Day of each
March, June, September and December and on the Termination Date, which fees
shall be for the pro rata benefit of the Lenders and (ii) in addition to all
other fees, with respect to all Letters of Credit, a fee computed at the rate of
0.25% per annum calculated on the face amount of each Letter of Credit, which
fee shall be paid quarterly in arrears on the last Business Day of each March,
June September and December and on the Termination Date, and shall be solely for
the account of the Agent. Such fees are nonrefundable. The Company further
agrees to pay to the Agent, on demand, such other customary administrative fees,
charges and expenses of the Agent in respect of the issuance, negotiation,
acceptance, amendment, transfer and payment of such Letter of Credit or
otherwise payable pursuant to the application and related documentation under
which such Letter of Credit is issued. Notwithstanding anything in the Creative
Revenue Bond Documents to the contrary, the fees payable for the Creative Letter
of Credit shall be governed by this Section 2.3(b).
(c) The Company further agrees to pay to the Agent, the Arranger
and/or their Affiliates such fees in such amounts as may from time to time be
agreed upon in writing by the Company, the Agent and the Arranger.
2.4 Disbursement of Advances. (a) The applicable Borrower shall give
the Agent notice of its request for an Advance in substantially the form of
Exhibit J hereto not later than 1:00 p.m. Detroit time (i) three LIBOR Business
Days prior to the date such Borrowing is requested to be made if such Borrowing
is to be made as a LIBOR Borrowing, (ii) five Business Days prior to the date
any Letter of Credit Borrowing is requested to be made, (iii) three Business
Days prior to the date such Borrowing is requested to be made if such Borrowing
is to be made as an Acceptance Borrowing and (iv) one Business Day prior to the
date such Borrowing is requested to be made in all other cases (other than
Swingline Loans), which notice shall specify whether a LIBOR Borrowing, Floating
Rate Borrowing, Acceptance or Letter of Credit Borrowing is requested and, in
the case of each requested LIBOR Borrowing or Acceptance Borrowing, the Interest
Period to be initially applicable to such Borrowing and, in the case of each
Letter of Credit Borrowing, such information as may be necessary for the
issuance thereof by the Agent. The Applicable Borrower shall give the Agent
notice of its request for each Swingline Loan in substantially the form of
Exhibit K hereto not later than 1:00 p.m. Detroit time on the same Business Day
such Swingline Loan is requested to be made. The Agent, not later than the
Business Day next succeeding the day such notice is given, shall provide notice
of such requested Borrowing (not including Swingline Loans) to each Lender.
Subject to the terms and conditions of this Agreement, the proceeds of each such
requested Borrowing or Swingline Loan shall be made available to such Borrower
by depositing the proceeds thereof in immediately available funds, in an account
maintained and designated by such Borrower at the principal office of the Agent
in the case of U.S. Advances and at the principal office of First Chicago/NBD
Canada in the case of Canadian Advances. Subject to the terms and conditions of
this Agreement, the Agent shall, on the date any Letter of Credit Borrowing is
requested to be made, issue the related Letter of Credit on behalf of the
Lenders for the account of the Company. Notwithstanding anything herein to the
contrary, the Agent may decline to
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issue any requested Letter of Credit on the basis that the beneficiary, the
purpose of issuance or the terms or the conditions of drawing are unacceptable
to it in its reasonable discretion.
(b) Each Lender, on the date any Borrowing is requested to be
made, shall make its pro rata share of such Borrowing available in immediately
available funds for disbursement to the applicable Borrower pursuant to the
terms and conditions of this Agreement. Unless the Agent shall have received
notice from any Lender prior to the date such Borrowing is requested to be made
under this Section 2.4 that such Lender will not make available to the Agent
such Lender's pro rata portion of such Borrowing, the Agent may assume that such
Lender has made such portion available to the Agent on the date such Borrowing
is requested to be made in accordance with this Section 2.4. Each Lender's pro
rata share of any U.S. Advance shall be based on its U.S. Percentage, and each
Canadian Advance shall be made by the Canadian Lenders (either directly or
through an Affiliate) based on its Canadian Percentage. If and to the extent
such Lender shall not have so made such pro rata portion available to the Agent,
the Agent may (but shall not be obligated to) make such amount available to such
Borrower , and such Lender and such Borrower severally agree to pay to the Agent
forthwith on demand such amount together with interest thereon, for each day
from the date such amount is made available to such Borrower by the Agent until
the date such amount is repaid to the Agent, at a rate per annum equal to the
interest rate applicable to such Borrowing during such period. If such Lender
shall pay such amount to the Agent together with interest, such amount so paid
shall constitute a Loan by such Lender as a part of such Borrowing for purposes
of this Agreement. The failure of any Lender to make its pro rata portion of any
such Borrowing available to the Agent shall not relieve any other Lender of its
obligations to make available its pro rata portion of such Borrowing on the date
such Borrowing is requested to be made, but no Lender shall be responsible for
failure of any other Lender to make such pro rata portion available to the Agent
on the date of any such Borrowing.
(c) All Revolving Credit Loans made under this Section 2.4 to the
Borrowers shall be evidenced by the Revolving Credit Notes issued by the
Borrowers, all Tooling Revolving Credit Loans shall be evidenced by the Tooling
Revolving Credit Notes issued by the Borrowers, the Term Loan shall be evidenced
by the Term Notes issued by the Company and all Swingline Loans under this
Section 2.4 shall be evidenced by the Swingline Notes issued by the Borrowers,
and all such Loans shall be due and payable and bear interest as provided in
Article III. Each Lender is hereby authorized by the Borrowers to record on the
schedules attached to the Notes or in its books and records, the date, amount
and type of each Loan and the duration of the related Interest Period (if
applicable), the amount of each payment or prepayment of principal thereon, and
the other information provided for on such schedule, which schedule or books and
records, as the case may be, shall constitute prima facie evidence of the
information so recorded, provided, however, that failure of any Lender to
record, or any error in recording, any such information shall not relieve the
Borrowers of their obligations to repay the outstanding principal amount of the
Loans, all accrued interest thereon and other amounts payable with respect
thereto in accordance with the terms of the Notes and this Agreement. Subject to
the terms and conditions of this Agreement, the Borrowers may borrow Loans under
this Section 2.4 and under Section 3.3, prepay Loans pursuant to Section 3.1 and
reborrow Revolving Credit Advances and Tooling Revolving Credit Advances, but
not the Term Loan, under this Section 2.4 and under Section 3.3.
(d) Nothing in this Agreement shall be construed to require or
authorize any Lender to issue any Letter of Credit, it being recognized that the
Agent has the sole obligation under this Agreement to issue Letters of Credit on
behalf of the Lenders. Upon each issuance, extension and renewal by the Agent,
each Lender shall automatically and unconditionally acquire a pro rata risk
participation interest in such Letter of Credit Advance based on the amount of
its respective Revolving
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Credit Commitment, and each Existing Letter of Credit shall be deemed issued
hereunder and each Lender shall automatically and unconditionally acquire a pro
rata risk participation interest therein based on the amount of its respective
Revolving Credit Commitment, upon becoming a Lender hereunder. If the Agent
shall honor a draft or other demand for payment presented or made under any
Letter of Credit, the Agent shall provide notice thereof to each Lender promptly
after such draft or demand is honored unless the Company shall have satisfied
its reimbursement obligation under Section 3.3 by payment to the Agent on such
date. Each Lender, on the date of such notice, shall absolutely and
unconditionally make its pro rata share (based on its Revolving Credit
Commitment) of the amount paid by the Agent available in immediately available
funds at the principal office of the Agent for the account of the Agent. If and
to the extent such Lender shall not have made such pro rata portion available to
the Agent, such Lender and the Company severally agree to pay to the Agent
forthwith on demand such amount together with interest thereon, for each day
from the date such amount was paid by the Agent until such amount is so made
available to the Agent at a per annum rate equal to the interest rate applicable
during such period to the Floating Rate Loans. If a Loan has been disbursed in
respect to the reimbursement obligation of the Company under Section 3.3 in the
case of Letter of Credit, then if such Lender shall pay such amount to the Agent
together with such interest, such amount so paid shall constitute a Loan by such
Lender as part of such Borrowing disbursed in respect of the reimbursement
obligation of the Company under Section 3.3 for purposes of this Agreement. The
failure of any Lender to make its pro rata portion of any such amount paid by
the Agent available to the Agent shall not relieve any other Lender of its
obligation to make available its pro rata portion of such amount, but no Lender
shall be responsible for failure of any other Lender to make such pro rata
portion available to the Agent.
2.5 Conditions for First Disbursement. The obligation of the Lenders
to make the first Borrowing hereunder is subject to receipt by each Lender and
the Agent of the following documents and completion of the following matters, in
form and substance satisfactory to each Lender and the Agent:
(a) Charter Documents. Certificates of recent date of the
appropriate authority or official of each Borrower and each Guarantor's
respective state or province of organization (listing all charter documents of
each Borrower and each Guarantor, respectively, on file in that office if such
listing is available) and certifying as to the good standing and existence of
each Borrower and each Guarantor, respectively, together with copies of such
charter documents of each Borrower and each Guarantor, certified as of a recent
date by such authority or official and certified as true and correct as of the
Effective Date by a duly authorized officer of each Borrower and each Guarantor,
respectively;
(b) Operating Agreements, By-Laws and Corporate Authorizations.
Copies of the operating agreements or article of incorporation, as the case may
be, and by-laws of each Borrower and each Guarantor together with all
authorizing resolutions and evidence of other corporate action taken by each
Borrower and each Guarantor to authorize the execution, delivery and performance
by each Borrower and each Guarantor of the Loan Documents to which each Borrower
and such Guarantor, respectively, is a party and the consummation by each
Borrower and such Guarantor, respectively, of the transactions contemplated
hereby, certified as true and correct as of the Effective Date by a duly
authorized officer of each Borrower and each Guarantor, respectively;
(c) Incumbency Certificate. Certificates of incumbency of each
Borrower and each Guarantor containing, and attesting to the genuineness of, the
signatures of those officers authorized to act on behalf of each Borrower and
such
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Guarantor in connection with the Loan Documents to which each Borrower or such
Guarantor is a party and the consummation by each Borrower and such Guarantor of
the transactions contemplated hereby, certified as true and correct as of the
Effective Date by a duly authorized officer of each Borrower and each Guarantor,
respectively;
(d) Notes. The Notes duly executed on behalf of the Borrowers for
each Lender and the Swingline Notes duly executed on behalf of the Borrowers for
the Agent and First Chicago/NBD Canada;
(e) Security Documents. The Security Agreements duly executed on
behalf of the Company and the Guarantors, the Pledge Agreements duly executed by
the Company and, to the extent applicable, each Guarantor and the Guaranties
duly executed on behalf of each Guarantor, granting to the Lenders and the Agent
the collateral and security intended to be provided pursuant to Section 2.11,
together with:
(i) Recording, Filing, Etc. Evidence of the recordation,
filing and other action (including payment of any applicable taxes or fees) in
such jurisdictions as the Lenders or the Agent may deem necessary or appropriate
with respect to the Security Documents, including the filing of financing
statements, financing statement assignments, financing statement amendments and
similar documents which the Lenders and the Agent may deem necessary or
appropriate to create, preserve or perfect the liens, security interests and
other rights intended to be granted to the Lenders or the Agent thereunder,
together with Uniform Commercial Code record and other searches in such offices
as the Lenders or the Agent may request;
(ii) Leased Property; Landlord Waivers. A schedule setting
forth all real property leased by the Company and each Guarantor, together with
copies of the related leases, certified as true and correct as of the Effective
Date by a duly authorized officer of the Company, and an agreement of each
landlord under such leases, in form and substance acceptable to the Lenders and
the Agent, waiving its distraint, lien and similar rights with respect to any
property subject to the Security Documents and agreeing to permit the Lenders
and the Agent to enter such premises in connection therewith;
(iii) Casualty and Other Insurance. Evidence that the
casualty and other insurance required pursuant to Section 5.1(c) and the
Security Agreements is in full force and effect;
(iv) Stock. The original stock certificates of any Capital
Stock which is required to be pledged pursuant to Section 2.11 and appropriate
stock powers, together with any recordings or other filings required by law and
any consents and waivers requested by the Agent with respect to the exercise of
any rights under the Pledge Agreements, including without limitation any
shareholders' and board of directors' consents so requested; and
(v) Environmental Matters. The Environmental Certificate
duly executed on behalf of the Borrowers and each of the Guarantors;
(f) Legal Opinion. The favorable written opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ PLLC, Fasken ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Salans ▇▇▇▇▇▇▇▇▇ & Heilbronn, counsels
for the Borrowers and Guarantors, with respect to such matters as the Agent may
request;
(g) Consents, Approvals, Etc. Copies of all governmental and
nongovernmental consents, approvals, authorizations, declarations, registrations
or filings, if any,
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required on the part of the Company or any Guarantor in connection with the
execution, delivery and performance of the Loan Documents or the transactions
contemplated hereby or as a condition to the legality, validity or
enforceability of the Loan Documents, certified as true and correct and in full
force and effect as of the Effective Date by a duly authorized officer of the
Company, or, if none is required, a certificate of such officer to that effect;
(h) Fees. Payment of the fees described in Section 2.3(c);
(i) Solvency Certificate. A solvency certificate duly executed by
the Company and its Subsidiaries in form and substance satisfactory to the
Agent;
(j) Subordinated Debt. Evidence satisfactory to the Agent,
including without limitation legal opinions of the Company's counsel, that all
transactions contemplated pursuant to this Agreement, including without
limitation making of all Advances and all transactions contemplated pursuant to
the Cofimeta Acquisition Documents, are in compliance with, and do not cause any
breach or other default under, any of the Senior Subordinated Debt Documents;
(k) Canadian Intercreditor Agreement. The Canadian Intercreditor
Agreement duly executed by all parties thereto, together with any documents
required in connection therewith by the Agent;
(l) Mexican Intercreditor Agreement. The Mexican Intercreditor
Agreement duly executed by all parties thereto, together with any documents
required in connection therewith by the Agent;
(m) Mexican Facility. The Mexican Facility shall close on the
Effective Date in accordance with the form of Mexican Facility Documents
delivered to the Agent prior to the Effective Date.
(n) Due Diligence. The satisfactory completion of the Cofimeta
Acquisition and all due diligence with respect to the Company, the Mexican
Subsidiaries, Cofimeta, its other Subsidiaries, the Cofimeta Acquisition and the
Mexican Facility, including, but not limited to, the satisfactory review of all
Mexican Facility Documents and Cofimeta Acquisition Documents, all terms,
conditions and provisions of the Mexican Facility and the Cofimeta Acquisition,
all final projections, all pro forma and prospective financial statements, all
sources and uses statements, pro forma borrowing base and covenant compliance
projections and certificates, appraisals, new business awards and contracts of
the Company and its Subsidiaries, the organizational structure of the Company
and its Subsidiaries after the Mexican Facility and the Cofimeta Acquisition,
all environmental matters relating to Cofimeta, the continuance plan relating to
Cofimeta and all required court and other approvals required in connection with
the Cofimeta Acquisition, and the form and structure, including the financial,
legal, accounting, tax and all other aspects of the Mexican Facility and the
Cofimeta Acquisition, all of which shall be satisfactory to the Agent and its
counsel; and
(o) Miscellaneous. Such other documents, and completion of such
other matters, as the Agent may reasonably request.
It is acknowledged and agreed by the Borrowers that all Notes, Guaranties,
Security Documents and other Loan Documents executed in connection with the
Existing Credit Agreement continue in full force and effect and are ratified and
confirmed, and, among other terms and provisions contained therein,
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continue to evidence, secure and guarantee, as the case may be, all of the
Advances and Lender Indebtedness and shall be considered Notes, Guaranties,
Security Documents and Loan Documents as defined herein, provided that the
Borrowers agree to execute and deliver, and cause each of their Subsidiaries to
execute and deliver, all appropriate amendments and other documents, if any, and
additional Security Documents and other Loan Documents as may be required by the
Agent in connection herewith, and all such additional agreements and documents
shall be promptly executed and delivered to the Agent, and no event later than
10 days after requested by the Agent.
2.6 Further Conditions for Disbursement. The obligation of the Lenders
to make any Advance (including the first Advance), or any continuation or
conversion under Section 2.7, is further subject to the satisfaction of the
following conditions precedent:
(a) The representations and warranties contained herein and in
the other Loan Documents shall be true and correct on and as of the date such
Advance is made (both before and after such Advance is made) as if such
representations and warranties were made on and as of such date;
(b) No Default or Event of Default shall exist or shall have
occurred and be continuing on the date such Advance is made (whether before or
after such Advance is made);
(c) The Agent shall have received the Borrowing Base Certificate
if required pursuant to Section 5.1(d)(v) as of the close of business on the
last day of the month next preceding the date such Advance is made; and
(d) In the case of any Letter of Credit Advance, the Company
shall have delivered to the Agent an application for the related Letter of
Credit and other related documentation requested by and acceptable to the Agent
appropriately completed and duly executed on behalf of the Company; and
(e) In the case of any Acceptance, the Borrowing Subsidiary shall
have delivered all documents and agreements required pursuant to Section 3.4.
The Borrowers shall be deemed to have made a representation and warranty to the
Lenders at the time of the making of, and the continuation or conversion of,
each Advance to the effects set forth in clauses (a) and (b). For purposes of
this Section 2.6 the representations and warranties contained in Section 4.6
hereof shall be deemed made with respect to both the financial statements
referred to therein and the most recent financial statements delivered pursuant
to Section 5.1(d)(ii) and (iii).
2.7 Subsequent Elections as to Borrowings. The applicable Borrower may
elect (a) to continue a LIBOR Borrowing, or a portion thereof, as a LIBOR
Borrowing or (b) to convert a LIBOR Borrowing or a portion thereof to a Floating
Rate Borrowing, (c) to convert a Floating Rate Borrowing to a LIBOR Borrowing,
(d) to continue an Acceptance or a portion thereof, as an Acceptance or (e) to
convert an Acceptance or a portion thereof to a Floating Rate Borrowing, in each
case by giving notice thereof to the Agent (with sufficient executed copies for
each Lender) in substantially the form of Exhibit L hereto not later than 1:00
p.m. Detroit time three LIBOR Business Days prior to the date any such
continuation of or conversion to a LIBOR Borrowing is to be effective, not later
than 1:00 p.m. Toronto time three Business Days prior to the date any such
continuation of or conversion to an Acceptance is to be effective and not later
than 1:00 p.m. Detroit time one Business Day prior to the date of any such
continuation or conversion is to be effective in all other cases, provided that
an outstanding LIBOR Borrowing or Acceptance Borrowing may only be converted on
the last day of the then current Interest
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Period with respect to such Borrowing, and provided, further, if a continuation
of a Borrowing as, or a conversion of a Borrowing to, a LIBOR Borrowing or
Acceptance Borrowing is requested, such notice shall also specify the Interest
Period to be applicable thereto upon such continuation or conversion. The Agent,
not later than the Business Day next succeeding the day such notice is given,
shall provide notice of such election to the Lenders. If the applicable Borrower
shall not timely deliver such a notice with respect to any outstanding LIBOR
Borrowing or Acceptance Borrowing, such Borrower shall be deemed to have elected
to convert such LIBOR Borrowing or Acceptance Borrowing to a Floating Rate
Borrowing on the last day of the then current Interest Period with respect to
such Borrowing.
2.8 Limitation of Requests and Elections. Notwithstanding any other
provision of this Agreement to the contrary, (a) if, upon receiving a request
for a LIBOR Borrowing pursuant to Section 2.4, or a request for a continuation
of a LIBOR Borrowing or a request for a conversion of a Floating Rate Borrowing
to a LIBOR Borrowing pursuant to Section 2.7, (i) deposits in Dollars for
periods comparable to the LIBOR Interest Period elected by the Company are not
available to any Lender in the relevant interbank market, or (ii) LIBOR will not
adequately and fairly reflect the cost to any Lender of making, funding or
maintaining the related LIBOR Loan or (iii) by reason of national or
international financial, political or economic conditions or by reason of any
applicable law, treaty or other international agreement, rule or regulation
(whether domestic or foreign) now or hereafter in effect, or the interpretation
or administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Lender with any
guideline, request or directive of such authority (whether or not having the
force of law), including without limitation exchange controls, it is
impracticable, unlawful or impossible for, or shall limit or impair the ability
of, any Lender to make or fund the relevant Loan or to so continue or convert
such Loan then the Company shall not be entitled, so long as such circumstances
continue, to request such a Borrowing pursuant to Section 2.4 or a continuation
of or conversion to such a Borrowing pursuant to Section 2.7 and (b) if the
Agent shall have determined that by reason of circumstances affecting the money
market, there is no market for Acceptances, then the right of the Borrowing
Subsidiaries to request Acceptances and the acceptance thereof shall be
suspended until the Agent determines that the circumstances causing such
suspension no longer exists and the Agent so notifies the Borrowing
Subsidiaries. In the event that such circumstances no longer exist, the Lenders
shall again consider requests for such Borrowings pursuant to Section 2.4, and
requests for continuations of and conversions to such Borrowings pursuant to
Section 2.7.
2.9 Minimum Amounts; Limitation on Number of Borrowings; Etc. Except
for (a) Borrowings which exhaust the entire remaining amount of the relevant
Commitments, and (b) payments required pursuant to Section 3.1(c), each Floating
Rate Borrowing denominated in Dollars and each prepayment thereof shall be in a
minimum amount of $500,000 and in an integral multiple of $100,000, each LIBOR
Borrowing and each continuation or conversion thereof pursuant to Section 2.7
shall be in a minimum amount of $2,000,000 and in an integral multiple of
$500,000, each Letter of Credit Advance shall be in a minimum amount of
$100,000, each Floating Rate Borrowing denominated in CAD and each prepayment
thereof shall be in a minimum amount of CAD $500,000 and in integral multiple of
CAD $100,000, and each Acceptance and each continuation or conversion thereof
pursuant to Section 2.7 shall be in a minimum amount of CAD $2,000,000 and in an
integral multiple of CAD $500,000. The aggregate number of LIBOR Borrowings and
Acceptance Borrowings outstanding at any one time under this Agreement may not
exceed eight (8). The aggregate number of Letter of Credit Advances outstanding
at any time under this Agreement may not exceed five (5). No Letter of Credit
shall have a stated expiry date later than the earlier to occur of (i) the first
anniversary of its date of issuance or (ii) the fifth Business Day before the
Revolving Credit Termination Date.
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2.10 Borrowing Base Adjustments. The Borrowers agree that if at any
time any trade account receivable, fixed asset, tooling reimbursement obligation
or any inventory of the Borrowers or any Guarantor fails to constitute Eligible
Accounts Receivable, Eligible Fixed Assets, Eligible Inventory, Eligible Tooling
or Eligible Deferred Tooling Reimbursement Payments, as the case may be, for any
reason, the Agent may, at any time upon written notice to the Company and
notwithstanding any prior classification of eligibility, classify such asset or
property as ineligible and exclude the same from the computation of the
Borrowing Base without in any way impairing the rights of the Lenders and the
Agent, in and to the same under the Security Agreements. The Borrowers agree
that real estate shall only be included in the Borrowing Base if the Borrowers
shall have delivered an appraisal acceptable to the Agent performed by an
independent third party appraiser acceptable to the Agent; it being acknowledged
that any real estate appraisals delivered prior to the Effective Date are
acceptable to the Agent.
2.11 Security and Collateral. To secure the payment when due of the
Notes and all other obligations of the Borrowers under this Agreement, any
Hedging Agreement or any other Loan Document to the Lenders and the Agent and of
the Company under the Mexican Facility Tranche A Guaranty, the Company shall
execute and deliver, or cause to be executed and delivered, to the Agent
Security Documents granting the following:
(a) Security interests in all present and future accounts,
inventory, equipment, general intangibles, instruments, chattel paper,
documents, fixtures and all other personal property of each Borrower and each
Guarantor, which security interests shall secure all present and future
indebtedness, obligations and liabilities of each of the Borrowers to the
Lenders and the Agent, provided that such security interests granted by any
Borrower which is a Foreign Subsidiary and not a Canadian Subsidiary shall
secure only the present and future indebtedness, obligations and liabilities of
such Borrower to the Lenders and the Agent.
(b) Guarantees of all Guarantors, which Guarantees shall
guarantee all present and future indebtedness, obligations and liabilities of
the Borrowers to the Lenders and the Agent.
(c) (i) Pledges of 100% of the Capital Stock of all Domestic
Subsidiaries and Canadian Subsidiaries which are Restricted Subsidiaries owned
directly or indirectly by the Company and (ii) pledges of 65% of the Capital
Stock of Foreign Subsidiaries which are not Canadian Subsidiaries and are
Restricted Subsidiaries and are owned by the Company or any Domestic
Subsidiaries, provided that such pledges granted by any Borrower which is a
Foreign Subsidiary and not a Guarantor shall secure only the present and future
indebtedness, obligations and liabilities of such Borrower to the Lenders and
the Agent.
(d) Liens on all present and future real property of each
Borrower and Guarantor, other than the real property of ▇▇▇▇▇▇▇ to the extent
▇▇▇▇▇▇▇ is prohibited from granting such a Lien under the existing terms of the
▇▇▇▇▇▇▇ Preferred Stock Documents, provided that such Liens granted by any
Borrower which is a Foreign Subsidiary and not a Canadian Subsidiary shall
secure only the present and future indebtedness, obligations and liabilities of
such Borrower to the Lenders and the Agent. The Borrowers acknowledge and agree
that they will, and will cause each Guarantor, to execute and deliver on or
before 30 days after the Effective Date, all mortgages, deeds of trust,
mortgagee title policies, surveys and other documents reasonably required by the
Agent in connection with the granting of a first priority lien and security
interest on the real property described in this Section 2.11(d).
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(e) All other security and collateral described in the Security
Documents.
ARTICLE III.
PAYMENTS AND PREPAYMENTS OF ADVANCES
3.1 Principal Payments and Prepayments.
(a) Unless earlier payment is required under this Agreement, the
Borrowers shall pay to the Lenders on the Revolving Credit Termination Date the
entire outstanding principal amount of the Revolving Credit Advances.
(b) Unless earlier payment is required under this Agreement, the
Borrowers shall pay the Lenders on the Tooling Revolving Credit Termination Date
the entire principal amount of the Tooling Revolving Credit Loans.
(c) The Company shall pay to the Agent for the pro rata account
of each Lender the unpaid principal amount of the Term Loan in 22 quarterly
principal payments as follows:
---------------------------------------------------------------------------
Payment Date Principal Installment
---------------------------------------------------------------------------
July 31, 1999 $ 500,000
---------------------------------------------------------------------------
October 31, 1999 $ 500,000
---------------------------------------------------------------------------
January 31, 2000 $ 500,000
---------------------------------------------------------------------------
April 30, 2000 $1,125,000
---------------------------------------------------------------------------
July 31, 2000 $1,125,000
---------------------------------------------------------------------------
October 31, 2000 $1,125,000
---------------------------------------------------------------------------
January 31, 2001 $1,125,000
---------------------------------------------------------------------------
April 30, 2001 $1,500,000
---------------------------------------------------------------------------
July 31, 2001 $1,500,000
---------------------------------------------------------------------------
October 31, 2001 $1,500,000
---------------------------------------------------------------------------
January 31, 2002 $1,500,000
---------------------------------------------------------------------------
April 30, 2002 $1,500,000
---------------------------------------------------------------------------
July 31, 2002 $1,500,000
---------------------------------------------------------------------------
October 31, 2002 $1,500,000
---------------------------------------------------------------------------
January 31, 2003 $1,500,000
---------------------------------------------------------------------------
April 30, 2003 $1,875,000
---------------------------------------------------------------------------
July 31, 2003 $1,875,000
---------------------------------------------------------------------------
October 31, 2003 $1,875,000
---------------------------------------------------------------------------
January 31, 2004 $1,875,000
---------------------------------------------------------------------------
April 30, 2004 $2,250,000
---------------------------------------------------------------------------
July 31, 2004 $2,250,000
---------------------------------------------------------------------------
The Term Loan shall be paid in full on the Maturity Date.
(d) In addition to all other payments of the Advances required
hereunder, the Borrowers shall prepay the Advances by an amount equal to 100% of
all of the Net Cash Proceeds, payable upon receipt of such Net Cash Proceeds,
from any sale or other disposition of any assets (exclusive of the
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sale of inventory and the factoring of accounts receivable to the extent
permitted under Section 5.2(e)(x) in the ordinary course of business upon
customary credit terms, sales of scrap or obsolete material or equipment which
are not material in the aggregate and transfers of assets to the Mexican
Subsidiaries to the extent permitted by Section 5.2(l)(v)), in excess of
$2,000,000 in aggregate amount in any fiscal year, provided that (i) the
Borrowers shall not be required to prepay the Advances from the Net Cash
Proceeds from the sale or any disposition of assets if such Net Cash Proceeds
will be used within 180 days (or 360 days if such sale involves the Planned
Asset Sales) of their receipt to purchase similar assets of comparable value and
(ii) the Borrower shall not be required to prepay the Advances in connection
with the transfer of any assets to a joint venture in accordance with Section
5.2(l) and it is acknowledged that the Borrowing Base shall be immediately
decreased by the value of such assets being transferred which were included in
the Borrowing Base. The Company shall provide a certificate to the Agent within
20 days after each sale of assets, which, but for the above proviso, would cause
a prepayment under this Section 3.1(d), which certificate shall describe such
sale of assets and estimate when such Net Cash Proceeds will be used to purchase
similar assets of comparable value; and if such Net Cash Proceeds are not used
within 180 days (or 360 days if such sale involves the Planned Asset Sales)
after such sale or such earlier date when the Company has determined not to
purchase similar assets of comparable value with such Net Cash Proceeds the
Company will then prepay the Advances with such Net Cash Proceeds.
Notwithstanding the foregoing, upon and during the continuance of any Event of
Default, 100% of all the Net Cash Proceeds from any sale or other disposition of
any assets shall be used to prepay the Advances. Such mandatory prepayments
shall be applied first to the Term Loan (applied pro rata to all remaining
principal installments on the Term Loan) until paid in full, and thereafter
applied pro rata to the other Advances, provided that such prepayments on the
Advances other than the Term Loans will not reduce the Commitments relating
thereto.
(e) The Company may at any time and from time to time prepay all
or a portion of the Loans, without premium or penalty, provided that (i) the
Company may not prepay any portion of any Borrowing as to which an election for
a continuation of or a conversion to a LIBOR Borrowing or Acceptance Borrowing
is pending pursuant to Section 2.7, and (ii) unless earlier payment is required
under this Agreement, any LIBOR Borrowing or Acceptance Borrowing may only be
prepaid on the last day of the then current Interest Period with respect to such
Borrowing.
(f) In addition to all other payments of Advances required
hereunder, if at any time the aggregate outstanding principal amount of the
Advances shall exceed any of the limits provided under Section 2.1(e), the
Borrowers shall forthwith pay to the Lenders an amount for application to the
outstanding principal amount of the Loans, or provide to the Lenders cash
collateral in respect of outstanding Letters of Credit in an amount, such that
the aggregate amount of such payments with respect to the Loans and such cash
collateral is not less than the amount of such excess.
3.2 Interest Payments. The Borrowers shall pay interest to the Lenders
on the unpaid principal amount of each Loan made to them, for the period
commencing on the date such Loan is made until such Loan is paid in full, on
each Interest Payment Date and at maturity (whether at stated maturity, by
acceleration or otherwise), and thereafter on demand, at, in the case of
Swingline Loans, the Floating Rate and, in all other cases, the following rates
per annum:
(a) During such periods that such Loan is a Floating Rate Loan,
the Floating Rate.
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(b) During such periods that such Loan is a LIBOR Loan, the LIBOR
applicable to such Loan for each related LIBOR Interest Period.
(c) During such periods such Loan is a BA Equivalent Loan, the
applicable rate specified in Section 3.4.
Notwithstanding the foregoing, the Borrowers shall pay interest on demand by the
Agent at the Overdue Rate on the outstanding principal amount of any Loan and
any other amount payable by the Borrowers hereunder (other than interest) which
is not paid in full when due (whether at stated maturity, by acceleration or
otherwise) for the period commencing on the due date thereof until the same is
paid in full.
For the purposes of the Interest Act (Canada) and Canadian Advances hereunder:
(i) whenever any interest or fee under this Agreement is calculated
using a rate based on a year of 360 days or 365 days, such rate
determined pursuant to such calculation, when expressed as an annual
rate, is equivalent to (X) the applicable rate based on a year of 360
days or 365 days, as the case may be, (Y) multiplied by the actual
number of days in the relevant calendar year, and (Z) divided by 360 or
365 as the case may be;
(ii) the principle of deemed reinvestment of interest does not apply
to any interest calculation under this Agreement; and
(iii) the rates of interest stipulated in this Agreement are intended
to be nominal rates and not effective rates or yields.
3.3 Letters of Credit and Acceptances. (a) (i) The Borrowers agree to
pay to the Lenders, on the day on which the Agent shall honor a draft or other
demand for payment presented or made under any Letter of Credit and on the
maturity date of each Bankers' Acceptance, an amount equal to the amount paid by
the Agent in respect of such draft or other demand under such Letter of Credit,
an amount equal to the face value of each Bankers' Acceptance accepted by such
Lender maturing on that day (notwithstanding that a Lender may be the holder
thereof at maturity) and all reasonable expenses paid or incurred by the Agent
relative thereto. Unless the Borrowers shall have made such payment to the
Lenders on such day, upon each such payment by the Agent with respect to a
Letter of Credit and each such maturity date of each Banker's Acceptance, the
Agent shall be deemed to have disbursed to the relevant Borrowers, and such
Borrowers shall be deemed to have elected to satisfy its reimbursement and
payment obligation by, a Revolving Credit Borrowing bearing interest at the
Floating Rate for the account of the Lenders in an amount equal to the amount so
paid by the Agent in respect of such draft or other demand under such Letter of
Credit or in the face value of such Banker's Acceptance then maturing. Such
Revolving Credit Borrowing shall be disbursed notwithstanding any failure to
satisfy any conditions for disbursement of any Loan set forth in Article II
hereof and, to the extent of the Revolving Credit Borrowing so disbursed, the
reimbursement and payment obligation of the Company under this Section 3.3(a)(i)
shall be deemed satisfied; provided, however, that nothing in this Section 3.3
shall be deemed to constitute a waiver of any Default or Event of Default caused
by the failure to the conditions for disbursement or otherwise.
(ii) If, for any reason (including without limitation as a
result of the occurrence of an Event of Default with respect to the Company
pursuant to Section 6.1(g)), Floating Rate Loans may not be made by the Lenders
as described in Section 3.3(a)(i), then (A) the Borrowers agree
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that each amount not paid pursuant to the first sentence of Section 3.3(a)(i)
shall bear interest, payable on demand by the Agent, at the interest rate then
applicable to Floating Rate Borrowings, and (B) effective on the date each such
Floating Rate Borrowing would otherwise have been made, each Lender severally
agrees that it shall unconditionally and irrevocably, without regard to the
occurrence of any Default or Event of Default, in lieu of deemed disbursement of
Floating Rate Loans, to the extent of such Lender's Revolving Credit Commitment
in the case of Letters of Credit, purchase a participating interest in each
reimbursement amount paid by the Agent with respect to Letters of Credit. Each
Lender will immediately transfer to the Agent, in same day funds, the amount of
its participation. Each Lender shall share on a pro rata basis (calculated by
reference to its Revolving Credit Commitment) in any interest which accrues
thereon and in all repayments thereof. If and to the extent that any Lender
shall not have so made the amount of such participating interest available to
the Agent, such Lender and the Borrowers severally agree to pay to the Agent
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by the Agent until the date such amount is paid to the
Agent, at (x) in the case of the Borrowers, the interest rate then applicable to
Floating Rate Borrowings and (y) in the case of such Lender, the Federal Funds
Rate for the first five days after the date of demand by the Agent and
thereafter at the interest rate then applicable to Floating Rate Borrowings.
(b) The reimbursement and other payment obligations of the
Borrowers under this Section 3.3 shall be absolute, unconditional and
irrevocable and shall remain in full force and effect until all obligations of
the Borrowers to the Lenders hereunder shall have been satisfied, and such
obligations of the Borrowers shall not be affected, modified or impaired upon
the happening of any event, including without limitation, any of the following,
whether or not with notice to, or the consent of, the Borrowers:
(i) Any lack of validity or enforceability of any Letter
of Credit, Acceptance or any documentation relating to any Letter of Credit, any
Acceptance or to any transaction related in any way thereto (the "Documents");
(ii) Any amendment, modification, waiver, consent, or any
substitution, exchange or release of or failure to perfect any interest in
collateral or security, with respect to any of the Documents;
(iii) The existence of any claim, setoff, defense or other
right which the Company or any of its Subsidiaries may have at any time against
any beneficiary or any transferee of any Letter of Credit or Acceptance (or any
Persons or entities for whom any such beneficiary, transferee or holder may be
acting), the Agent or any Lender or any other Person or entity, whether in
connection with any of the Documents, the transactions contemplated herein or
therein or any unrelated transactions;
(iv) Any draft or other statement or document presented
under any Letter of Credit or Acceptance proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) Payment by the Agent to the beneficiary under any
Letter of Credit against presentation of documents which do not comply with the
terms of the Letter of Credit, including failure of any documents to bear any
reference or adequate reference to such Letter of Credit;
(vi) Any failure, omission, delay or lack on the part of
the Agent or any Lender or any party to any of the Documents to enforce, assert
or exercise any right, power or
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remedy conferred upon the Agent, any Lender or any such party under this
Agreement or any of the Documents, or any other acts or omissions on the part of
the Agent, any Lender or any such party;
(vii) Any defense based on the lack of presentment for
payment and any other defense to payment of any amounts due to a Lender in
respect of any Acceptance accepted by it pursuant to this Agreement which might
exist solely by reason of such Acceptance being held, at the maturity thereof,
by such Lender in its own right;
(viii) Any other event or circumstance that would, in the
absence of this clause, result in the release or discharge by operation of law
or otherwise of the Company from the performance or observance of any
obligation, covenant or agreement contained in this Section 3.3.
No setoff, counterclaim, reduction or diminution of any obligation or
any defense of any kind or nature which any Borrower has or may have against the
beneficiary or holder of any Letter of Credit or Acceptance shall be available
hereunder to any Borrower against the Agent or any Lender. Nothing in this
Section 3.3 shall limit the liability, if any, of the Agent and the Lenders to
the Company pursuant to Section 8.5(b).
3.4 Additional Terms for Acceptances. Subject to the terms and
conditions hereof, upon giving to the Agent prior written notice in accordance
with Section 2.4 hereof, on any Business Day a Borrowing Subsidiary may borrow
from the Lenders by way of Acceptances, provided that:
(a) (i) each Lender shall have received a Bankers' Acceptance or
Bankers' Acceptances in the aggregate principal amount of such Borrowing from
such Lender in due and proper form duly completed and executed by the Borrowing
Subsidiary and presented for acceptance to such Lender prior to 10:00 a.m.
(Toronto time) on the date for such Borrowing, together with such other document
or documents as such Lender may reasonably require (including the execution by
the Borrowing Subsidiary of such Lender's usual form of bankers' acceptances)
and the Acceptance Fee shall have been paid to such Lender at or prior to such
time;
(ii) each Bankers' Acceptance shall be stated to mature on
a Business Day, no later than the Revolving Credit Termination Date, which is
30, 60 or 90 days from the date of its acceptance;
(iii) each Bankers' Acceptance shall be stated to mature on
a Business Day in such a way that no Lender will be required to incur any costs
for the redeployment of funds as a consequence of any repayment required during
any period for which such Bankers' Acceptance is outstanding;
(iv) no days of grace shall be permitted on any Bankers'
Acceptance; and
(v) the aggregate face amount of the Bankers' Acceptances
to be accepted by a Lender shall be determined by the Agent by reference to the
respective relevant Revolving Credit Commitments of the Lenders, except that, if
the face amount of a Bankers' Acceptance which would otherwise be accepted by a
Lender would not be $100,000 or a whole multiple thereof, such face amount shall
be increased or reduced by the Agent in its sole discretion to $100,000 or the
nearest whole multiple of that amount, as appropriate.
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(b) Each Borrowing Subsidiary acknowledges, agrees and confirms
that each Lender may at any time and from time to time hold, sell, rediscount or
otherwise dispose of any Acceptance accepted and purchased by it hereunder. Each
Borrowing Subsidiary acknowledges, agrees and confirms with the Lenders that the
records of each Lender in respect of payment of any Banker's Acceptance by such
Lender shall be binding on the Borrowing Subsidiary and shall be conclusive
evidence (in the absence of manifest error) of a Floating Rate Loan to the
Borrowing Subsidiary and of an amount owing by the Borrowing Subsidiary to such
lender.
(c) In the event a Lender is unable to accept Bankers'
Acceptances, such Lender shall have the right at the time of accepting drafts to
require the Borrowing Subsidiary to accept a Loan from such Lender in lieu of
the issue and acceptance of a Bankers' Acceptance requested by the Borrowing
Subsidiary to be accepted so that there shall be outstanding while the Bankers'
Acceptances are outstanding BA Equivalent Loans from such Lender as contemplated
herein. The principal amount of each BA Equivalent Loan shall be that amount
which, when added to the amount of interest (calculated at the applicable
Discount Rate) which will accrue during the BA Equivalent Interest Period shall
be equal, at maturity, to the face amount of the drafts which would have been
accepted by such Lender had it accepted Bankers' Acceptances. The "BA EQUIVALENT
INTEREST PERIOD" for each BA Equivalent Loan shall be equal to the Interest
Period of the drafts presented for acceptance as Bankers' Acceptances on the
relevant date of Borrowing. On the relevant date of the Borrowing the Borrowing
Subsidiary shall pay to the Agent a fee equal to the Acceptance Fee which would
have been payable to such Lender if it were a Lender accepting drafts having a
term to maturity equal to the applicable BA Equivalent Interest Period and an
aggregate face amount equal to the sum of the principal amount of the BA
Equivalent Loan and the interest payable thereon by the Borrowing Subsidiary for
the Applicable BA Equivalent Interest Period. The provisions of this Agreement
dealing with Bankers' Acceptances shall apply, mutatis mutandis, to BA
Equivalent Loans.
(d) Each Bankers' Acceptance issued pursuant to this Agreement
shall be purchased by the Lender accepting such Bankers' Acceptance for the
Discounted Proceeds thereof. Concurrent with the acceptance of each Bankers'
Acceptance, each Lender shall make available to the Agent the Discounted
Proceeds thereof for disbursement to the Borrowing Subsidiary in accordance with
the terms hereof. In each case, upon receipt of such Discounted Proceeds from
the Lenders and upon fulfilment of the applicable conditions set forth herein,
the Agent shall make such funds available to the Borrowing Subsidiary in
accordance with this Agreement. Upon each issue of Bankers' Acceptances as a
result of the conversion of outstanding Borrowings into Bankers' Acceptances,
the Borrowing Subsidiary shall, concurrently with the conversion, pay in advance
to the Agent on behalf of the Lenders, the amount by which the face value of
such Bankers' Acceptances exceeds the Discounted Proceeds of such Bankers'
Acceptances, to be applied against the principal amount of the Borrowing being
so converted. The Borrowing Subsidiary shall at the same time pay to the Agent
the applicable Acceptance Fee.
(e) To enable the Lenders to make Advances in the manner
specified in this Section 3.4, the Borrowing Subsidiary shall, in accordance
with the request of each Lender either (i) provide a power of attorney to
complete, sign, endorse and issue Bankers' Acceptances, in such form as such
Lender may require; or (ii) supply each Lender with such number of drafts as
such Lender may reasonably request, duly endorsed and executed on behalf of the
Borrowing Subsidiary. Each Lender shall exercise such care in the custody and
safekeeping of drafts as it would exercise in the custody and safekeeping of
similar property owned by it. Each Lender will, upon request by the Borrowing
Subsidiary, promptly advise the Borrowing Subsidiary of the number and
designations, if any, of the uncompleted drafts then held by it.
3.5 Payment Method. (a) All payments with respect to U.S. Advances to
be made by the Borrowers hereunder will be made in Dollars and all payments with
respect to Canadian Advances
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to made by the Borrowers hereunder shall be made in CAD, and in each case in
immediately available funds to the Agent for the account of the relevant Lenders
at its address referred to in Section 8.2 not later than 1:00 p.m. Detroit time
on the date on which such payment shall become due and, with respect to Canadian
Advances, to First Chicago/NBD Canada for the account of the relevant Lenders at
its address referred to in Section 8.2 not later than 1:00 p.m. Toronto time on
the date on which such payment shall become due. Payments received after 1:00
p.m. shall be deemed to be payments made prior to 1:00 p.m. on the next
succeeding Business Day. The Borrowers hereby authorize the Agent (including
First Chicago/NBD Canada) to charge their accounts with the Agent (including
First Chicago/NBD Canada) in order to cause timely payment of amounts due
hereunder to be made (subject to sufficient funds being available in such
accounts for that purpose).
(b) At the time of making each such payment, the Borrowers shall,
subject to the other terms and conditions of this Agreement, specify to the
Agent that Borrowing or other obligation of the Borrowers hereunder to which
such payment is to be applied. In the event that the Borrowers fails to so
specify the relevant obligation or if an Event of Default shall have occurred
and be continuing, the Agent may apply such payments as it may determine in its
sole discretion.
(c) On the day such payments are deemed received, the Agent shall
remit to the Lenders their pro rata shares of such payments in immediately
available funds. In the case of payments of principal and interest on any
Borrowing, such pro rata shares shall be determined with respect to each such
Lender by the ratio which the outstanding principal balance of its Loan included
in such Borrowing bears to the outstanding principal balance of the Loans of all
of the Lenders included in such Borrowing, in the case of fees paid pursuant to
Section 2.3 and other amounts payable hereunder (other than the Agent's fees and
amounts payable to any Lender under Section 3.8), such pro rata shares shall be
determined with respect to each such Lender by the ratio which the Commitments
of such Lender bears to the Commitments of all the Lenders or such other pro
rata shares as specified in this Agreement.
3.6 No Setoff or Deduction. Subject to Section 3.11, all payments of
principal of and interest on the Advances and other amounts payable by the
Borrowers hereunder shall be made by the Borrowers without setoff or
counterclaim and, subject to the next succeeding sentence, free and clear of,
and without deduction or withholding for, or on account of, any present or
future taxes, levies, imposts, duties, fees, assessments, or other charges of
whatever nature, imposed by any governmental authority, or by any department,
agency or other political subdivision or taxing authority. Subject to Section
3.11, any such taxes, levies, imposts, duties, fees, assessments or other
charges are imposed, the Borrowers will pay such additional amounts as may be
necessary so that payment of principal and of interest on the Loans and other
amounts payable hereunder, after withholding or deduction for or on account
thereof, will not be less than any amount provided to be paid hereunder and, in
any such case, the Borrowers will furnish to the Lenders certified copies of all
tax receipts evidencing the payment of such amounts within 45 days after the
date any such payment is due pursuant to applicable law.
3.7 Payment on Non-Business Day; Payment Computations. Except as
otherwise provided in this Agreement to the contrary, whenever any installment
of principal of, or interest on, any Loan or any other amount due hereunder
becomes due and payable on a day which is not a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day and, in the case
of any installment of principal, interest shall be payable thereon at the rate
per annum determined in accordance with this Agreement during such extension.
Computations of interest and other amounts due under this Agreement shall be
made on the basis of a year of 360 days (or 365 days when determining the
Floating
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Rate or rates or fees with respect to Acceptances) for the actual number of days
elapsed, including the first day but excluding the last day of the relevant
period.
3.8 Additional Costs. (a) In the event that any applicable law, treaty
or other international agreement, rule or regulation (whether domestic or
foreign) now or hereafter in effect and whether or not presently applicable to
any Lender or the Agent, or any interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by any Lender or the Agent with any guideline, request or
directive of any such authority (whether or not having the force of law), shall
(i) affect the basis of taxation of payments to any Lender or the Agent of any
amounts payable by the Borrowers under this Agreement (other than taxes imposed
on the overall net income of any Lender or the Agent, by the jurisdiction, or by
any political subdivision or taxing authority of any such jurisdiction, in which
any Lender or the Agent, as the case may be, has its principal office), (ii)
shall impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any Lender or the Agent, or (iii) shall impose any other condition
with respect to this Agreement, or any of the Commitments, the Notes or the
Loans or any Letter of Credit, and the result of any of the foregoing is to
increase the cost to any Lender or the Agent, as the case may be, of making,
funding or maintaining any LIBOR Loan Acceptance, or any Letter of Credit or to
reduce the amount of any sum receivable by any Lender or the Agent, as the case
may be, thereon, then the Borrowers shall pay to such Lender or the Agent, as
the case may be, from time to time, upon request by such Lender (with a copy of
such request to be provided to the Agent) or the Agent, additional amounts
sufficient to compensate such Lender or the Agent, as the case may be, for such
increased cost or reduced sum receivable to the extent, in the case of any LIBOR
Loan, such Lender or the Agent is not compensated therefor in the computation of
the interest rate applicable to such LIBOR Loan. A statement as to the amount of
such increased cost or reduced sum receivable, prepared in good faith and in
reasonable detail by such Lender or the Agent, as the case may be, and submitted
by such Lender or the Agent, as the case may be, to the relevant Borrower, shall
be prima facie evidence thereof.
(b) In the event that any applicable law, treaty or other
international agreement, rule or regulation (whether domestic or foreign) now or
hereafter in effect and whether or not presently applicable to any Lender or the
Agent, or any interpretation or administration thereof by any governmental
authority charged with the interpretation or administration thereof, or
compliance by any Lender or the Agent with any guideline, request or directive
of any such authority (whether or not having the force of law), including any
risk-based capital guidelines, affects or would affect the amount of capital
required or expected to be maintained by such Lender or the Agent (or any
corporation controlling such Lender or the Agent) and such Lender or the Agent,
as the case may be, determines that the amount of such capital is increased by
or based upon the existence of such Lender's or the Agent's obligations
hereunder and such increase has the effect of reducing the rate of return on
such Lender's or the Agent's (or such controlling corporation's) capital as a
consequence of such obligations hereunder to a level below that which such
Lender or the Agent (or such controlling corporation) could have achieved but
for such circumstances (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Lender or the Agent to be
material, then the Borrowers shall pay to such Lender or the Agent, as the case
may be, from time to time, upon request by such Lender (with a copy of such
request to be provided to the Agent) or the Agent, additional amounts sufficient
to compensate such Lender or the Agent (or such controlling corporation) for any
increase in the amount of capital and reduced rate of return which such Lender
or the Agent reasonably determines to be allocable to the existence of such
Lender's or the Agent's obligations hereunder. A statement as to the amount of
such compensation, prepared in good faith and in reasonable detail by such
Lender or the Agent, as the case
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may be, and submitted by such Lender or the Agent to the relevant Borrower,
shall be prima facie evidence thereof.
3.9 Illegality and Impossibility. In the event that any applicable
law, treaty or other international agreement, rule or regulation (whether
domestic or foreign) now or hereafter in effect and whether or not presently
applicable to any Lender, or any interpretation or administration thereof by
any governmental authority charged with the interpretation or administration
thereof, or compliance by any Lender with any guideline, request or directive
of such authority (whether or not having the force of law), including without
limitation exchange controls, shall make it unlawful or impossible for any
Lender to maintain any Loan under this Agreement, the relevant Borrower shall
upon receipt of notice thereof from such Lender repay in full the then
outstanding principal amount of each Loan so affected, together with all
accrued interest thereon to the date of payment and all amounts owing to such
Lender under Section 3.10, (a) on the last day of the then current Interest
Period applicable to such Loan if such Lender may lawfully continue to maintain
such Loan to such day, or (b) immediately if such Lender may not continue to
maintain such Loan to such day.
3.10 Indemnification. If any Borrower makes any payment of principal
with respect to any LIBOR Loan on any other date than the last day of a LIBOR
Interest Period applicable thereto (whether pursuant to Section 3.1(c), Section
3.9, Section 6.2 or otherwise), or if any Borrower fails to borrow any LIBOR
Loan after notice has been given to the Lenders in accordance with Section 2.4,
or if any Borrower fails to make any payment of principal or interest in respect
of a LIBOR Loan when due, such Borrower shall reimburse each Lender on demand
for any resulting loss or expense incurred by each such Lender, including
without limitation any loss incurred in obtaining, liquidating or employing
deposits from third parties, whether or not such Lender shall have funded or
committed to fund such Loan. A statement as to the amount of such loss or
expense, prepared in good faith and in reasonable detail by such Lender and
submitted by such Lender to the relevant Borrower, shall be conclusive and
binding for all purposes absent manifest error in computation. Calculation of
all amounts payable to such Lender under this Section 3.10 shall be made as
though such Lender shall have actually funded or committed to fund the relevant
LIBOR Loan through the purchase of an underlying deposit in an amount equal to
the amount of such Loan in the relevant market and having a maturity comparable
to the related Interest Period and through the transfer of such deposit to a
domestic office of such Lender in the United States; provided, however, that
such Lender may fund any LIBOR Loan in any manner it sees fit and the foregoing
assumption shall be utilized only for the purpose of calculation of amounts
payable under this Section 3.10.
3.11 Taxes. (a) Each Lender (which, for purposes of this Section 3.11,
shall not include any Affiliate of such Lender used to make Canadian Advances
hereunder) that is not organized and incorporated under the laws of the United
States or any State thereof making U.S. Advances agrees to file with the Agent
and the Company, in duplicate, (a) on or before the later of (i) the Effective
Date and (ii) the date such Lender becomes a Lender under this Agreement and (b)
thereafter, for each taxable year of such Lender (in the case of a Form 4224) or
for each third taxable year of such Lender (in the case of any other form)
during which interest or fees arising under this Agreement and the Notes are
received, unless not legally able to do so as a result of a change in the United
States income tax enacted, or treaty promulgated, after the date specified in
the preceding clause (a), on or prior to the immediately following due date of
any payment by the Company hereunder, a properly completed and executed copy of
either Internal Revenue Service Form 4224 or Internal Revenue Service Form 1001
and Internal Revenue Service Form W-8 or Internal Revenue Service Form W-9 and
any additional form necessary for claiming complete exemption from United States
withholding taxes (or such other form as is required to claim complete exemption
from United States withholding taxes), if and as provided by the Code or
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other pronouncements of the United States Internal Revenue Service, and such
Lender warrants to the Company that the form so filed will be true and complete;
provided that such Lender's failure to complete and execute such Form 4224 or
Form 1001, or Form W-8 or Form W-9, as the case may be, and any such additional
form (or any successor form or forms) shall not relieve the Company of any of
its obligations under this Agreement, except as otherwise provided in this
Section 3.11.
(b) Notwithstanding anything herein to the contrary, for any
period with respect to which a Lender has failed to provide the Company with the
appropriate form pursuant to Section 3.11(a) (unless such failure is due to a
change in treaty, law or regulation occurring subsequent to the date on which a
form originally was required to be provided), such Lender shall not be entitled
to indemnification under Section 3.6 with respect to withholding taxes imposed
by the United States; provided, however, that should a Lender, which is
otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to withholding because of its failure to deliver a form required
hereunder, the Borrowers shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such taxes.
(c) Each Canadian Lender that is created or organized under the
laws of a jurisdiction other than Canada or a Province thereof making Canadian
Advances shall deliver, or have its designated Affiliate to be used to make
Canadian Advances deliver, to the Company and the Agent on the Effective Date
(or on the date on which such Canadian Lender becomes a Lender hereunder),
evidence that the Minister of National Revenue is satisfied that payments made
to such Lender hereunder are not subject to Taxes pursuant to Regulation 805(2)
of the Income Tax Act ("Evidence of Canadian Tax Exemption"). In addition, from
time to time after the Effective Date (or the date on which such Canadian Lender
becomes a Lender hereunder) upon the reasonable request of the Company, each
such Canadian Lender further agrees to deliver to the Company and the Agent
further Evidence of Canadian Tax Exemption, unless any change in treaty, law,
regulation or official interpretation thereof prevents such Lender from duly
providing same. Notwithstanding anything in this Section 3.11 to the contrary,
the Company shall not have any obligation to pay any withholding taxes or to
indemnify any Canadian Lender for any withholding taxes to the extent that such
taxes result from the failure of such Lender to comply with its obligations
under this paragraph.
(d) Notwithstanding anything herein to the contrary, for any
period with respect to which a Canadian Lender has failed to provide the Company
with the appropriate form pursuant to Section 3.11(c) (unless such failure is
due to a change in treaty, law or regulation occurring subsequent to the date on
which a form originally was required to be provided), such Canadian Lender shall
not be entitled to indemnification under Section 3.6 with respect to withholding
taxes imposed by Canada; provided however, that should a Canadian Lender, which
is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to withholding taxes because of its failure to deliver a form required
hereunder, the Company shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
(e) If any Borrower is required to pay additional amounts to or
for the account of any Lender pursuant to Section 3.6, and each Lender which is
not a Canadian Lender shall be entitled to such amounts if it is ever required
to make or participate in Canadian Advances under this Agreement, then such
Lender will change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue if
such change, in the judgment of such Lender, is not otherwise disadvantageous to
such Lender. For the purposes of making any Canadian Advances, any Lender may
designate any Affiliate of such Lender in Canada to make such Canadian Advances
on its
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behalf, provided that such designation is made in writing to the Agent and the
Borrowers. Upon such designation, such Affiliate shall have all rights as a
Lender with respect to such Canadian Advances.
3.12 Substitution of Lender. If (i) the obligation of any Lender to
make or maintain LIBOR Loans has been suspended pursuant to Section 3.9 when not
all Lenders' obligations have been suspended, (ii) any Lender has demanded
compensation under Section 3.8 when all Lenders have not done so or (iii) any
Lender is a Defaulting Lender, the Company shall have the right, if no Default
or Event of Default then exists, to replace such Lender (a "Replaced Lender")
with one or more other lenders (collectively, the "Replacement Lender")
acceptable to the Agent, provided that (x) at the time of any replacement
pursuant to this Section 3.12, the Replacement Lender shall enter into one or
more Assignment and Acceptances, pursuant to which the Replacement Lender shall
acquire the Commitments and outstanding Advances and other obligations of the
Replaced Lender and, in connection therewith, shall pay to the Replaced Lender
in respect thereof an amount equal to the sum of (A) the amount of principal of,
and all accrued interest on, all outstanding Loans of the Replaced Lender, (B)
the amount of all accrued, but theretofore unpaid, fees owing to the Replaced
Lender under Section 2.3 and (C) the amount which would be payable by the
Company to the Replaced Lender pursuant to Section 3.10 if the Company prepaid
at the time of such replacement all of the Loans of such Replaced Lender
outstanding at such time and (y) all obligations of the Company then owing to
the Replaced Lender (other than those specifically described in clause (x) above
in respect of which the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full to such Replaced Lender concurrently with
such replacement. Upon the execution of the respective Assignment and
Acceptances, the payment of amounts referred to in clauses (x) and (y) above
and, if so requested by the Replacement Lender, delivery to the Replacement
Lender of the appropriate Note or Notes executed by the Company, the Replacement
Lender shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder. The provisions of this Agreement (including
without limitation Sections 3.10 and 8.5) shall continue to govern the rights
and obligations of a Replaced Lender with respect to any Loans made or any other
actions taken by such lender while it was a Lender. Nothing herein shall release
any Defaulting Lender from any obligation it may have to any Borrower, the Agent
or any other Lender.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Lenders and the Agent that:
4.1 Corporate Existence and Power. Each of the Borrowers and the
Guarantors is a corporation or other organization duly organized, validly
existing and in good standing under the laws of its respective jurisdiction of
incorporation or formation, and is duly qualified to do business, and is in good
standing, in all additional jurisdictions where such qualification is necessary
under applicable law, except for jurisdictions where their failure to be so
qualified would not result in any Material Adverse Effect. Each of the Company
and the Guarantors has all requisite corporate or other organizational power to
own or lease the properties used in its business and to carry on its business as
now being conducted and as proposed to be conducted, and to execute and deliver
the Loan Documents to which it is a party and to engage in the transactions
contemplated by this Agreement.
4.2 Corporate Authority. The execution, delivery and performance by
each of the Borrowers and the Guarantors of the Loan Documents to which each of
them is a party have been duly authorized by all necessary corporate or other
organizational action and are not in contravention of any
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law, rule or regulation, or any judgment, decree, writ, injunction, order or
award of any arbitrator, court or governmental authority, or of the terms of
such Borrower's or such Guarantor's charter, operating agreement or by-laws, or
of any contract or undertaking to which such Borrower or such Guarantor is a
party or by which such Borrower or such Guarantor or any of their property may
be bound or affected and will not result in the imposition of any Lien on any of
such Borrower's or such Guarantor's property or of any of such Borrower's or
such Guarantor's property, except for Permitted Liens.
4.3 Binding Effect. These Loan Documents to which each of the
Borrowers and the Guarantors is a party are the legal, valid and binding
obligations of such Borrower and such Guarantor, respectively, enforceable
against each of them in accordance with their respective terms.
4.4 Subsidiaries. Schedule 4.4 hereto correctly sets forth the
corporate name, jurisdiction of incorporation or formation and ownership of each
Subsidiary of the Company. Each such Subsidiary and each corporation or other
organization becoming a Subsidiary of the Company after the date hereof is and
will be a corporation or other organization duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation and is and
will be duly qualified to do business in each additional jurisdiction where such
qualification is or may be necessary under applicable law, except for such
failure which could not have a Material Adverse Effect. Each Subsidiary of the
Company has and will have all requisite corporate or other organizational power
to own or lease the properties used in its business and to carry on its business
as now being conducted and as proposed to be conducted. All outstanding shares
of Capital Stock of each Subsidiary of the Company have been and will be validly
issued and are and will be fully paid and nonassessable and, except with respect
to the ▇▇▇▇▇▇▇ Preferred Stock or as disclosed in writing to and approved by the
Agent from time to time, are and will be owned, beneficially and of record, by
the Company or another Subsidiary of the Company free and clear of any Liens.
4.5 Litigation. Except as set forth in Schedule 4.5 hereto, there is
no action, suit or proceeding pending or, to the best of the Company's
knowledge, threatened against or affecting the Company or any of its
Subsidiaries before or by any court, governmental authority or arbitrator, which
if adversely decided might result, either individually or collectively, in any
Material Adverse Effect and, to the best of the Company's knowledge, there is no
basis for any such action, suit or proceeding.
4.6 Financial Condition. The consolidated and consolidating balance
sheet of the Company and its Subsidiaries and the consolidated and consolidating
statements of income, retained earnings and cash flows of the Company and its
Subsidiaries for the fiscal year ended March 31, 1998 and reported on by Price
Waterhouse LLP, independent certified public accountants, copies of which have
been furnished to the Lenders, fairly present, and the financial statements of
the Company and its Subsidiaries delivered pursuant to Section 5.1(d) will
fairly present, the consolidated financial position of the Company and its
Subsidiaries as at the respective dates thereof, and the consolidated results of
operations of the Company and its Subsidiaries for the respective periods
indicated, all in accordance with Generally Accepted Accounting Principles
consistently applied (subject, in the case of said interim statements, to
year-end audit adjustments). There has been no Material Adverse Effect since
March 31, 1998. There is no Contingent Liability of the Company or any of its
Subsidiaries that is not reflected in such financial statements or in the notes
thereto which could have a Material Adverse Effect. Neither the Company nor any
Restricted Subsidiary is liable directly or indirectly, for any of the
Indebtedness or other liabilities of any Unrestricted Subsidiary or for any
Contingent Liabilities with respect to any Unrestricted Subsidiary except as
permitted by Section 5.2(e).
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4.7 Use of Advances. The Company will use the proceeds of the Advances
to complete the Cofimeta Acquisition, to refinance existing indebtedness of the
Guarantors, and for its and the Guarantors' general corporate purposes. Neither
the Company nor any of its Subsidiaries extends or maintains, in the ordinary
course of business, credit for the purpose, whether immediate, incidental, or
ultimate, of buying or carrying margin stock (within the meaning of Regulations
T, U or X of the Board of Governors of the Federal Reserve System), and no part
of the proceeds of any Advance will be used for the purpose, whether immediate,
incidental, or ultimate, of buying or carrying any such margin stock or
maintaining or extending credit to others for such purpose. The Capital Stock of
Cofimeta is not "margin stock" within the meaning of Regulations T, U or X of
the Board of Governors of the Federal Reserve System and is not "marginable OTC
stock" or "foreign margin stock" within the meaning of Regulation T of the Board
of Governors of the Federal Reserve System. After applying the proceeds of each
Advance, such margin stock will not constitute more than 25% of the value of the
assets (either of the Company alone or of the Company and its Subsidiaries on a
consolidated basis) that are subject to any provisions of any Loan Document that
may cause the Advances to be deemed secured, directly or indirectly, by margin
stock.
4.8 Consents, Etc. Except for such consents, approvals,
authorizations, declarations, registrations or filings delivered by the Company
pursuant to Section 2.5(g), if any, each of which is in full force and effect,
no consent, approval or authorization of or declaration, registration or filing
with any governmental authority or any nongovernmental Person or entity,
including without limitation any creditor, lessor or stockholder of the Company
or any of its Subsidiaries, is required on the part of any Borrower or any
Guarantor in connection with the execution, delivery and performance of the Loan
Documents or the transactions contemplated hereby or as a condition to the
legality, validity or enforceability of any of the Loan Documents.
4.9 Taxes. The Company and its Subsidiaries have filed all tax returns
(federal, state and local) required to be filed and have paid all taxes shown
thereon to be due, including interest and penalties, or have established
adequate financial reserves on their respective books and records for payment
thereof. Neither the Company nor any of its Subsidiaries knows of any actual or
proposed tax assessment or any basis therefor, and no extension of time for the
assessment of deficiencies in any federal or state tax has been granted by the
Company or any such Subsidiary. The Company will not amend any Tax Sharing
Agreement without the prior approval of the Agent except to add wholly owned
Subsidiaries to any such Tax Sharing Agreement.
4.10 Title to Properties. Except as otherwise disclosed in the latest
balance sheet referred to in Section 4.6 or delivered pursuant to Section
5.1(d), the Company or one or more of its Subsidiaries have good and marketable
fee simple title (or the equivalent thereto in any relevant foreign
jurisdiction) to all of the real property, and a valid and indefeasible
ownership or leasehold interest in all of the other properties and assets
(including, without limitation, the collateral subject to the Security Documents
to which any of them is a party) reflected in said balance sheet or subsequently
acquired by the Company or any such Subsidiary. All of such properties and
assets are free and clear of any Lien, except for Permitted Liens. The Security
Documents grant a first priority, perfected and enforceable lien and security
interest in all collateral described therein, subject only to Permitted Liens.
4.11 Borrowing Base. All trade accounts receivable, fixed assets and
inventory of the Borrowers and the Guarantors represented or reported by the
Company to be, or otherwise included in, Eligible Accounts Receivable, Eligible
Deferred Tooling Reimbursement Payments, Eligible Fixed Assets and Eligible
Inventory, comply in all respects with the requirements therefor set forth in
the respective definitions thereof, and the computation of the Borrowing Base
set forth in each Borrowing
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Base Certificate is true and correct. The aggregate amount of all Revolving
Credit Advances, plus all Tooling Revolving Credit Loans, plus all Unrestricted
Guarantees, plus the outstanding Swingline Loans and plus the outstanding amount
of all Mexican Facility Tranche A Loans is equal to or less than the Borrowing
Base and the aggregate amount of all Tooling Revolving Credit Loans is equal to
or less than the Tooling Revolving Credit Borrowing Base.
4.12 ERISA. The Company and its ERISA Affiliates and their respective
Plans are in compliance in all material respects with those provisions of ERISA
and of the Code which are applicable with respect to any Plan. No Prohibited
Transaction and no Reportable Event has occurred with respect to any such Plan
which could, in the aggregate, result in any liability to the Company or any of
its ERISA Affiliates in excess of $2,000,000. None of the Company or any of its
ERISA Affiliates is an employer with respect to any Multiemployer Plan. The
Company and its ERISA Affiliates have met or are meeting in compliance with all
laws and regulations the minimum funding requirements under ERISA and the Code
with respect to each of their respective Plans, if any, and have not incurred
any liability to the PBGC or any Plan. The execution, delivery and performance
of the Loan Documents do not constitute a Prohibited Transaction. There is no
Unfunded Benefit Liability, with respect to any Plan of the Company or its ERISA
Affiliates which could have a Material Adverse Effect.
4.13 Disclosure. No report or other information furnished in writing by
or on behalf of the Company or any of its Subsidiaries to any Lender or the
Agent in connection with the negotiation or administration of this Agreement
contains any material misstatement of fact or omits to state any material fact
or any fact necessary to make the statements contained therein not misleading in
light of the circumstances in which they were made. No Loan Document nor any
other document, certificate, or report or statement or other information
furnished to any Lender or the Agent by or on behalf of the Company or any of
its Subsidiaries in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact in order to make the statements contained herein and therein not misleading
in light of the circumstances in which they were made. There is no fact known to
the Company which materially and adversely affects, or which in the future may
(so far as the Company can now reasonably foresee) materially and adversely
affect, the business, properties, operations or condition, financial or
otherwise, of the Company or any of its Subsidiaries, which has not been set
forth in this Agreement (including without limitation the schedules hereto) or
in the other documents, certificates, statements, reports and other information
furnished in writing to the Lenders by or on behalf of the Company or any of its
Subsidiaries in connection with the transactions contemplated hereby.
4.14 Environmental Matters. The representations and warranties set
forth in the Environmental Certificate are true and complete.
4.15 Solvency. The Company and its Subsidiaries are and, after giving
effect to the transactions described herein and the Subordinated Debt Documents
and to the incurrence or assumption of all obligations being incurred or assumed
in connection herewith, will be Solvent.
4.16 No Defaults under Certain Agreements. Neither the Company nor any
of its Subsidiaries is in default or has received any written notice of default
under or with respect to any contract or agreement to which it is a party or by
which it is bound, including without limitation any agreements for the
incurrence of any indebtedness or any tooling or purchase contracts, which could
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.
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4.17 Intellectual Property. Set forth on Schedule 4.17 is a complete
and accurate list of all patents, trademarks, trade names, service marks and
copyrights, and all applications therefor and licenses thereof, of the Company
and each of its Subsidiaries showing as of the Effective Date the jurisdiction
in which registered, the registration number and the date of registration. The
Company and each of its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, service marks, copyrights, technology, know-how and
processes necessary for the conduct of its business as currently conducted (the
"Intellectual Property") except for those the failure to own or license which
could not reasonably be expected to have a Material Adverse Effect. No claim has
been asserted and is pending by any Person challenging or questioning the use of
any such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Company or any of its Subsidiaries know of
any valid basis for any such claim, the use of such Intellectual Property by the
Company and each of its Subsidiaries does not infringe on the rights of any
Person, and, to the knowledge of the Company, no Intellectual Property has been
infringed, misappropriated or diluted by any other Person except for such
claims, infringements, misappropriation and dilutions that, in the aggregate,
could not have a Material Adverse Effect.
4.18 Preferred Stock. All ▇▇▇▇▇▇▇ Preferred Stock Documents are listed
on Schedule 4.18 hereto, and true, correct and complete copies of all ▇▇▇▇▇▇▇
Preferred Stock Documents have been delivered to the Agent. All dividends,
distributions, redemptions and other payments required on the ▇▇▇▇▇▇▇ Preferred
Stock are described on Schedule 4.18. Other than the ▇▇▇▇▇▇▇ Preferred Stock,
there is no other Preferred Stock as of the Effective Date.
4.19 Investment Company Act; Other Regulations. Neither the Company nor
any of its Subsidiaries is an "investment company", or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act of
1940, as amended. Neither the Company nor any of its Subsidiaries is subject to
regulation under any federal or state statute or regulation which limits its
ability to incur Indebtedness.
4.20 Senior Subordinated Debt Documents. All representations and
warranties of the Company contained in any Senior Subordinated Debt Document are
true and correct in all material respects. The Company has received net proceeds
in the approximate amount of $120,800,000 on June 24, 1997 and in the
approximate amount of $36,400,000 on April 1, 1998 and $40,600,000 on December
8, 1998 from its issuance of the Senior Subordinated Notes, and all agreements,
instruments and documents executed or delivered pursuant to the issuance of the
Senior Subordinated Notes are described on Schedule 1.1(D) hereto. All Advances
and all other present and future indebtedness, obligations and liabilities
pursuant to the Loan Documents and all Hedging Obligations of each Borrower and
each Guarantor owed to any Lender is "Senior Debt " and "Designated Senior Debt"
as defined in the Senior Subordinated Debt Documents and, other than the
Advances and all other present and future indebtedness, obligations and
liabilities pursuant to the Loan Documents, there is no other "Designated Senior
Debt" thereunder. There is no Event of Default or event or condition which could
become an Event of Default with notice or lapse of time or both, under the
Senior Subordinated Debt Documents and each of the Senior Subordinated Debt
Documents is in full force and effect. Other than pursuant to the Senior
Subordinated Notes, there is no obligation pursuant to any Senior Subordinated
Debt Document or other document or agreement evidencing or relating to any
Subordinated Debt outstanding or to be outstanding on the Effective Date which
obligates the Company to pay any principal or interest or redeem any of its
Capital Stock or incur any other monetary obligation. The Term Loan is and will
be incurred pursuant to, and in full compliance with, Section 4.3(a) of the
Senior Subordinated Note Indenture, and the Term Loan is classified as
Indebtedness incurred under Section 4.3(a) of the Senior Subordinated Note
Indenture and are not classified as Indebtedness outstanding or incurred
pursuant to Section 4.3(b) of the Senior Subordinated Note Indenture. All
Tooling Revolving Credit Loans constitute "Tooling Indebtedness" as defined in
the Senior Subordinated Note Indenture and
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are incurred pursuant to Section 4.3 (b) of the Senior Subordinated Note
Indenture and do not need to meet the requirements of Section 4.3(a). All
Revolving Credit Advances, up to the full amount of the aggregate Revolving
Credit Commitments, are incurred pursuant to Section 4.3(b) of the Senior
Subordinated Note Indenture and do not need to meet the requirements of Section
4.3(a).
4.21 Unrestricted Subsidiaries. Other than the guaranties permitted by
Section 5.2(e)(x), neither the Company nor any Restricted Subsidiary of the
Company is liable, directly or indirectly, for any of the Indebtedness or other
liabilities of any Unrestricted Subsidiary or has any Contingent Liabilities
with respect to any Unrestricted Subsidiary, other than trade payables for the
sale of goods in the ordinary course of business and in compliance with Section
5.2(m).
4.22 Acquisitions. The Company has completed the Cofimeta Acquisition
in accordance with the Cofimeta Acquisition Documents and in accordance with all
laws and regulations and all other Requirements of Law, and has acquired, free
and clear of all Liens, good and marketable title to 100% of the Capital Stock
of Cofimeta. Complete and correct copies of all Cofimeta Acquisition Documents
have been delivered to the Agent on or before the Cofimeta Acquisition Date, and
the Company has satisfied all conditions precedent required as of closing under
the Cofimeta Acquisition to complete the Cofimeta Acquisition, including without
limitation all conditions to the Cofimeta Acquisition required under Section
5.2(g). The Company directly owns, free and clear of all Liens, 100% of the
Capital Stock of the OASP I and OASP II, OASP I directly owns, free and clear of
all Liens, 99.4% of the Capital Stock of the French Acquisition Company, OASP II
directly owns, free and clear of all Liens, 0.6% of the Capital Stock of the
French Acquisition Company and the French Acquisition Company directly owns,
free and clear of all Liens, 100% of the Capital Stock of Cofimeta. Neither OASP
I, OASP II nor the French Acquisition Company has or will have any Indebtedness
other than as set forth on Schedule 4.22(a) and the aggregate amount of the
Indebtedness of Cofimeta and its Subsidiaries immediately after giving effect to
the Cofimeta Acquisition is set forth on Schedule 4.22(b). The aggregate
consideration paid or payable, including without limitation any Indebtedness
assumed in connection with the Cofimeta Acquisition or the OPI Acquisition or
other guarantees or other liabilities incurred in connection therewith on a
consolidated basis, will not exceed the Dollar Equivalent of (a) $73,000,000
(which includes the assumption of the Total Covenant Obligations as set forth on
Schedule 4.22(c)) plus 140,000,000 French Francs of factored receivable
Indebtedness in connection with the Cofimeta Acquisition or (b) $12,000,000 in
connection with the OPI Acquisition.
4.23 Material Agreements. Neither the Company nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect.
4.24 Compliance With Laws. The Company and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
4.25 Year 2000. The Company has made a full and complete assessment of
the Year 2000 Issues and has a realistic and achievable program for remediating
the Year 2000 Issues on a timely basis (the "Year 2000 Program"). Based on such
assessment and on the Year 2000 Program, the
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Company does not reasonably anticipate that Year 2000 Issues will have a
Material Adverse Effect.
4.26 OPI Acquisition. If consummated, the OPI Acquisition will be
completed on substantially the terms described on Schedule 4.26 hereto and
described to the Agent prior to the Effective Date.
4.27 Mexican Facility. All representations and warranties of the
Company or any of its Subsidiaries contained in any Mexican Facility Document
are true and correct in all material respects. All agreements, instruments and
documents executed or delivered pursuant to the Mexican Facility are described
on Schedule 1.1(B) hereto. There is no Event of Default or event or condition
which could become an Event of Default with notice or lapse of time or both,
under the Mexican Facility Documents and each of the Mexican Facility Documents
is in full force and effect. The Mexican Facility provides an aggregate of
$75,000,000 of financing and provides sufficient financing to complete the
acquisition, construction and equipping of the Mexican Manufacturing Facility.
No commitment to lend or otherwise advance funds has been terminated under the
Mexican Facility Documents. The maximum amount of the Mexican Facility Tranche A
Loans is $63,000,000. The obligations and liabilities under the Mexican Facility
Tranche A Guaranty do not and will not exceed the outstanding amount of the
Mexican Facility Tranche A Loans and, other than the Mexican Facility Guaranty,
there are no, and will not be any, liabilities or obligations, direct,
contingent or otherwise, of any kind owing by the Company or any of its
Subsidiaries (other than the Mexican Subsidiaries) pursuant to the Mexican
Facilities.
ARTICLE V.
COVENANTS
5.1 Affirmative Covenants. The Company covenants and agrees that,
until the termination of all Commitments and Letters of Credit and thereafter
until payment in full of the principal of and accrued interest on the Notes and
the payment and performance of all other obligations of the Company under this
Agreement, any Hedging Agreement with any Lender and any other Loan Document,
unless the Required Lenders shall otherwise consent in writing, it shall, and
shall cause each of its Restricted Subsidiaries to:
(a) Preservation of Corporate Existence, Etc. Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and its qualification as a foreign corporation or other
organization in good standing in each jurisdiction in which such qualification
is necessary under applicable law, and the rights, licenses, permits (including
those required under Environmental Laws), franchises, patents, copyrights,
trademarks and trade names material to the conduct of its businesses, except to
the extent any of the foregoing would not have a Material Adverse Effect; and
defend all of the foregoing against all claims, actions, demands, suits or
proceedings at law or in equity or by or before any governmental instrumentality
or other agency or regulatory authority.
(b) Compliance with Laws, Etc. Comply in all respects with all
applicable laws, rules, regulations and orders of any governmental authority,
whether federal, state, local or foreign (including without limitation ERISA,
the Code and Environmental Laws), in effect from time to time, except to the
extent any of the foregoing would not have a Material Adverse Effect; and pay
and discharge promptly when due all taxes, assessments and governmental charges
or levies imposed upon it or upon its income, revenues or property, before the
same shall become delinquent or in default, as well as all lawful claims for
labor, materials and supplies or otherwise, which, if unpaid, might give rise to
Liens upon such properties or any portion thereof, except to the extent that
payment of any of the
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foregoing is then being contested in good faith by appropriate legal proceedings
and with respect to which adequate financial reserves have been established on
the books and records of the Company or any of its Restricted Subsidiaries.
(c) Maintenance of Properties; Insurance. Maintain, preserve and
protect all property that is material to the conduct of the business of the
Company or any of its Restricted Subsidiaries and keep such property in good
repair, working order and condition and from time to time make, or cause to be
made all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times in accordance with
customary and prudent business practices for similar businesses, except to the
extent any of the foregoing would not have a Material Adverse Effect; and
maintain in full force and effect insurance with responsible and reputable
insurance companies or associations in such amounts, on such terms and covering
such risks, including fire and other risks insured against by extended coverage,
as is usually carried by companies engaged in similar businesses and owning
similar properties similarly situated and maintain in full force and effect
public liability insurance, insurance against claims for personal injury or
death or property damage occurring in connection with any of its activities or
any properties owned, occupied or controlled by it, in such amount as it shall
reasonably deem necessary, and maintain such other insurance as may be required
by law or as may be reasonably requested by the Required Lenders for purposes of
assuring compliance with this Section 5.1(c).
(d) Reporting Requirements. Furnish to the Lenders and the Agent
the following:
(i) Promptly and in any event within three calendar days
after becoming aware of the occurrence of (A) any Default or Event of Default,
(B) the commencement of any material litigation against, by or affecting the
Company or any of its Restricted Subsidiaries, and any material developments
therein, or (C) entering into any material contract or undertaking that is not
entered into in the ordinary course of business or (D) any development in the
business or affairs of the Company or any of its Restricted Subsidiaries which
has resulted in or which is likely in the reasonable judgment of the Company, to
result in a Material Adverse Effect, a statement of the Chief Financial Officer
or Treasurer of the Company setting forth details of each such Default or Event
of Default or such litigation, material contract or undertaking or development
and the action which the Company or such Subsidiary, as the case may be, has
taken and proposes to take with respect thereto;
(ii) As soon as available and in any event within 45 days
after the end of each of the first three fiscal quarters of the Company, the
consolidated and consolidating balance sheets of the Company and its Restricted
Subsidiaries as of the end of such quarter, and the related consolidated and
consolidating statements of income, retained earnings and changes in cash flows
for the period commencing at the end of the previous fiscal year and ending with
the end of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the preceding
fiscal year, all in reasonable detail and duly certified (subject to year-end
audit adjustments) by the Chief Financial Officer or Treasurer of the Company as
having been prepared in accordance with Generally Accepted Accounting
Principles, together with a certificate of the Chief Financial Officer or
Treasurer of the Company stating (A) that no Default or Event of Default has
occurred and is continuing or, if a Default or Event of Default has occurred and
is continuing, a statement setting forth the details thereof and the action
which the Company has taken and proposes to take with respect thereto, and (B)
that a computation (which computation shall accompany such
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certificate and shall be in reasonable detail) showing compliance with Section
5.2(a), (b), (c) and (d) hereof is in conformity with the terms of this
Agreement;
(iii) As soon as available and in any event within 115 days
after the end of each fiscal year of the Company, a copy of the consolidated
balance sheet of the Company and its Subsidiaries as of the end of such fiscal
year and the related consolidated statements of income, retained earnings and
changes in cash flows of the Company and its Subsidiaries for such fiscal year,
with a customary audit report of PricewaterhouseCoopers LLP, or other
independent certified public accountants selected by the Company and acceptable
to the Agent, without qualifications unacceptable to the Agent, and including a
unaudited schedule in form acceptable to the Agent prepared by such accountants
setting forth the consolidating balance sheet of the Company and its Restricted
Subsidiaries as of the end of such fiscal year and the related consolidating
statements of income, retained earnings and changes in cash flows of the Company
and its Restricted Subsidiaries for such fiscal year, together with a
certificate of the Chief Financial Officer or the Treasurer of the Company
stating (A) that no Default or Event of Default has occurred and is continuing
and, if such a Default or Event of Default exists and is continuing, a statement
setting forth the nature and status thereof, and (B) that a computation (which
computation shall accompany such certificate and shall be in reasonable detail)
showing compliance with Sections 5.2(a), (b), (c) and (d) hereof is in
conformity with the terms of this Agreement and showing such other matters as
required by the Agent from time to time, all in form and substance satisfactory
to the Agent;
(iv) Promptly after the sending or filing thereof, copies
of all reports, proxy statements and financial statements which the Company or
any of its Subsidiaries sends to or files with any of their respective security
holders or any securities exchange or the Securities and Exchange Commission or
any successor agency thereof;
(v) On or before the 30th day after the end of each month
during which the Advances (other than the Term Loan) exceeded $35,000,000 on any
date during such month and at least two Business Days prior to any request for
an Advance which would cause the aggregate Advances (other than the Term Loan)
to exceed $35,000,000, a Borrowing Base Certificate prepared as of the close of
business on the last day of such month or the most recently ended month, as the
case may be, together with supporting schedules, in form and detail satisfactory
to the Agent, setting forth such information as the Agent may request with
respect to the aging, value, location and other information relating to the
computation of the Borrowing Base and the eligibility of any property or assets
included in such computation together with a report with respect to the Company
setting forth a summary and aging of accounts payable of the Company, a listing
of any checks held after the due date of the related vendor invoice and setting
forth the corresponding due dates of such invoices, in form and detail
satisfactory to the Agent, certified as true and correct by the Chief Financial
Officer or Treasurer of the Company;
(vi) As soon as available and in any event at least 30 days
prior to the end of each fiscal year of the Company, copies of preliminary
capital and operating budgets and financial forecasts for the Company and its
Subsidiaries for the following fiscal year, and as soon as available in any
event within 30 days after the end of each fiscal year of the Company, copies of
the final capital and operating budgets and financial forecasts for the Company
and its Subsidiaries for such fiscal year, in each case prepared on both a
consolidated and consolidating basis and for a twelve-month period on a month by
month basis (or more frequent period if so prepared by the Company in the
ordinary course) by or under the direction of the Chief Financial Officer or
Treasurer of the Company in form and
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detail satisfactory to the Agent, and, promptly and in any event within 10 days
after preparation thereof, copies of any revisions to such budgets and
forecasts;
(vii) Promptly and in any event within 10 calendar days
after receiving or becoming aware thereof (A) a copy of any notice of intent to
terminate any Plan of the Company its Subsidiaries or any ERISA Affiliate filed
with the PBGC, (B) a statement of the Chief Financial Officer or Treasurer of
the Company setting forth the details of the occurrence of any Reportable Event
with respect to any such Plan, (C) a copy of any notice that the Company, any of
its Subsidiaries or any ERISA Affiliate may receive from the PBGC relating to
the intention of the PBGC to terminate any such Plan or to appoint a trustee to
administer any such Plan, or (D) a copy of any notice of failure to make a
required installment or other payment within the meaning of Section 412(n) of
the Code or Section 302(f) of ERISA with respect to any such Plan;
(viii) Promptly and in any event within 10 days after
receipt, a copy of any management letter or comparable analysis prepared by the
auditors for the Company or any of its Subsidiaries;
(ix) Promptly after the sending or filing thereof, copies
of all reports, financial statements and other documents which the Company or
any of its Subsidiaries is required to deliver pursuant to the Mexican Facility
Documents; and
(x) Promptly, such other information respecting the
business, properties, operations or condition, financial or otherwise, of the
Company or any of its Restricted Subsidiaries or any of its Unrestricted
Subsidiaries with respect to which the Company or any of its Restricted
Subsidiaries has any Contingent Liabilities as any Lender or the Agent may from
time to time reasonably request.
(e) Accounting; Access to Records, Books, Etc. Maintain a system
of accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in accordance with
Generally Accepted Accounting Principles and to comply with the requirements of
this Agreement and, at any reasonable time and from time to time, (i) during
regular business hours, permit any Lender or the Agent or any agents or
representatives thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Company and
its Subsidiaries, and to discuss the affairs, finances and accounts of the
Company and its Subsidiaries with their respective directors, officers,
employees and independent auditors, and by this provision the Company hereby
authorizes such Persons to discuss such affairs, finances and accounts with any
Lender or the Agent and (ii) during regular business hours, permit the Agent or
any of its agents or representatives to conduct a comprehensive field audit of
its and its Subsidiaries' books, records, properties and assets, including
without limitation all collateral subject to the Security Documents, provided
that prior to an Event of Default no more than one such field audit (exclusive
of any field audits prior to the Effective Date, which are at the expense of the
Company) per fiscal year shall be at the expense of the Company.
(f) Maintenance of Business Lines. Maintain all principal lines
of business in which the Company or any of its Restricted Subsidiaries is
presently engaged.
(g) Additional Security and Collateral. Promptly (i) execute and
deliver, and cause each Restricted Subsidiary of the Company to execute and
deliver, additional Security Documents, within 30 days after request therefor by
the Lenders and the Agent, sufficient to grant to the
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Agent for the benefit of the Lenders and the Agent liens and security interests
in any after acquired property of the type described in Section 2.11 and (ii)
except as otherwise provided in this Agreement, cause each Person becoming a
Restricted Subsidiary of the Company from time to time to execute and deliver to
the Agent, within 30 days after such Person becomes a Restricted Subsidiary, a
Guaranty and Security Documents, together with other related documents described
in Section 2.5 sufficient to grant to the Agent for the benefit of the Lenders
and the Agent liens and security interests in all collateral of the type
described in Section 2.11. The Company shall notify the Agent, within 10 days
after the occurrence thereof, of the acquisition of any property by the Company
or any Restricted Subsidiary that is not subject to the existing Security
Documents, any Person's becoming a Restricted Subsidiary and any other event or
condition that may require additional action of any nature in order to preserve
the effectiveness and perfected status of the liens and security interests of
the Lenders and the Agent with respect to such property pursuant to the Security
Documents.
(h) Further Assurances. Execute and deliver, and cause each
Restricted Subsidiary of the Company to execute and deliver, within 30 days
after request therefor by the Lenders and the Agent, all further instruments and
documents and take all further action that may be necessary or desirable, or
that the Agent may request, in order to give effect to, and to aid in the
exercise and enforcement of the rights and remedies of the Lenders under, the
Loan Documents, including without limitation causing each lessor of real
property to the Company or any of its Restricted Subsidiaries to execute and
deliver to the Agent, prior to or upon the commencement of any tenancy, an
agreement in form and substance acceptable to the Lenders and the Agent duly
executed on behalf of such lessor waiving any distraint, lien and similar rights
with respect to any property subject to the Security Documents and agreeing to
permit the Lenders and the Agent to enter such premises in connection therewith.
The Company further agrees to take all necessary action to ensure that the Agent
and the Lenders may rely on the audited financial statements of the Company and
its Subsidiaries, including without limitation any necessary acknowledgments or
other consents from the Company's auditors as may be required under applicable
law.
(i) Year 2000. Take, and cause each of its Subsidiaries to take,
all such actions as are reasonably necessary to successfully implement the Year
2000 Program and to assure that Year 2000 Issues will not have a Material
Adverse Effect. At the request of the Agent, the Company will provide a
description of the Year 2000 Program, together with any updates or progress
reports with respect thereto.
5.2 Negative Covenants. Until the termination of all Commitments and
Letters of Credit and thereafter until payment in full of the principal of and
accrued interest on the Notes and the payment and performance of all other
obligations of the Company under this Agreement, any Hedging Agreement with any
Lender and any other Loan Document, the Company agrees that, unless the Required
Lenders shall otherwise consent in writing, it shall not, and shall not permit
any of its Restricted Subsidiaries to:
(a) Net Worth. Permit or suffer the Consolidated Net Worth of the
Company and its Restricted Subsidiaries to be less than (i) 90% of the
Consolidated Net Worth of the Company and its Restricted Subsidiaries as of
December 31, 1998, provided that such Consolidated Net Worth shall be greater
than the amount thereof as of September 30, 1998, plus (ii) an amount equal to
50% of Consolidated net income of the Company and its Subsidiaries (without
reduction for a net loss) for the three month period ending March 31, 1999 and
for each fiscal year of the Company subsequent to its fiscal year ended March
31, 1999, plus (iii) an amount equal to 100% of the Net Cash Proceeds in
connection with the issuance or other sale by the Company of any of its Capital
Stock.
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(b) Total Covenant Obligations to Total Covenant EBITDA Ratio.
Permit or suffer the Total Covenant Obligations to Total Covenant EBITDA Ratio,
to be greater than (i) 5.25 to 1.00 as of the end of any fiscal quarter of the
Company ending on or prior to December 31, 1999, (ii) 5.00 to 1.00 as of the end
of any fiscal quarter of the Company ending at any time from and including March
31, 2000 to and including ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) 4.75 to 1.0 as of the end of
any fiscal quarter of the Company and again at any time from and including March
31, 2001 to and including December 31, 2001, (iv) 4.5 to 1.0 as of the end of
any fiscal quarter of the Company ending at any time from and including March
31, 2002 to and including December 31, 2002, (v) 4.25 to 1.0 as of the end of
any fiscal quarter of the Company ending at any time from and including March
31, 2003 to and including December 31, 2003, or (vi) 4.00 to 1.00 as of the end
of any fiscal quarter thereafter.
(c) Fixed Charge Coverage Ratio. Permit or suffer the Fixed
Charge Coverage Ratio to be less than (i) 1.00 to 1.00 as of the end of any
fiscal quarter of the Company ending on or before December 31, 2000, (ii) 1.05
to 1.00 as of the end of any fiscal quarter ending at any time from and
including March 31, 2001 to and including December 31, 2002, or (iii) 1.10 to
1.0 as of the end of any fiscal quarter thereafter.
(d) Interest Coverage Ratio. Permit or suffer the Interest
Coverage Ratio to be less than (i) 2.00 to 1.0 as of the end of any fiscal
quarter ending on or before December 31, 1999, (ii) 2.10 to 1.0 as of the end of
any fiscal quarter of the Company ending at any time from and including March
31, 2000 to and including ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) 2.25 to 1.00 as of the end of
any fiscal quarter of the Company ending at any time from and including March
31, 2001 to and including December 31, 2001, (iv) 2.50 to 1.0 at any time from
and including March 31, 2002 to and including December 31, 2002 or (v) 2.75 to
1.00 as of the end of any fiscal quarter thereafter.
(e) Indebtedness. Create, incur, assume or in any manner become
liable in respect of, or suffer to exist, any Indebtedness other than:
(i) The Advances and the other obligations and liabilities
pursuant to any of the Loan Documents;
(ii) The Indebtedness described in Schedule 5.2(e),
including Contingent Liabilities, provided that no increase in the principal
amount thereof (as such amount is reduced from time to time) shall be permitted
and no modifications of the terms thereof which would result in an earlier final
maturity date or decreased weighted average life thereof shall be permitted;
(iii) Indebtedness of the Company or any Restricted
Subsidiary owing to the Company or any Guarantor, provided that any such
Indebtedness owing by any Borrower shall be fully subordinate to all Advances
and all other obligations of the Company to the Agent and the Lenders, by
written agreement pursuant to terms and conditions satisfactory to the Agent and
the Required Lenders;
(iv) Indebtedness constituting purchase money debt or
Capital Leases in aggregate outstanding principal amount not exceeding
$15,000,000 at any time;
(v) Subordinated Debt under the Senior Subordinated Notes
in aggregate principal amount not to exceed $200,000,000;
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(vi) Other Subordinated Debt of the Company or any
Guarantor, provided that (A) after giving effect to such Subordinated Debt, the
Company is able to borrow at least $25,000,000 of additional Loans, (B) both
before and after giving effect to such Subordinated Debt, no Event of Default or
Default exists or would be caused thereby, (C) after giving effect to such
Subordinated Debt, the pro forma Total Covenant Obligations to Total Covenant
EBITDA Ratio is at least 0.25 below the level required under Section 5.2(b), on
a pro forma basis acceptable to the Agent;
(vii) Tooling Indebtedness (in addition to the Tooling
Revolving Credit Advances) on terms and in amounts acceptable to the Agent;
(viii) Hedging Agreements with any Lender or other Person
acceptable to the Agent, provided that no Hedging Agreement shall be entered
into for purposes of financial speculation;
(ix) Indebtedness of the Restricted Subsidiaries of BMG in
aggregate principal amount not to exceed $2,500,000 and secured by the real
property owned by such Subsidiaries as of the Effective Date, provided that the
terms of such Indebtedness are no more onerous on such Subsidiaries as the terms
of the Indebtedness of such Subsidiaries secured by such real property that
existed immediately prior to the Effective Date;
(x) Guarantees by the Company of the Indebtedness of
Unrestricted Subsidiaries to the extent permitted by, and subject to the terms
of, Section 5.2(l)(viii); and
(xi) Indebtedness solely in connection with the factoring
of receivables by Foreign Subsidiaries of the Company which are not Canadian
Subsidiaries, in each case in the ordinary course of business and on customary
terms and conditions; provided that such factoring arrangements are acceptable
to the Agent and the aggregate outstanding amount thereof does not exceed the
sum of the amount thereof outstanding as of January 31, 1999 plus $30,000,000
minus the amount of the "Tranche B Loans" and "Tranche C Certificates" under,
and as defined in, the Mexican Facility Documents.
Notwithstanding the above or anything else herein to the contrary, neither OASP
I, OASP II, the Dutch Holding Company nor the French Acquisition Company shall
have any Indebtedness other than a guaranty by OASP I and OASP II of the
Advances and other obligations owing pursuant to any Loan Document, a
subordinated guaranty by OASP I and OASP II in favor of the holders of the
obligations owing under the Senior Subordinated Notes and a guarantee by the
French Acquisition Company in the amount of 66,000,000 French Francs of the debt
of Cofimeta Defeasance Company incurred in connection with the closing of the
Cofimeta Acquisition as further described on Schedule 4.22, and the aggregate
amount of the Indebtedness of Cofimeta and its Subsidiaries shall be limited to
(x) existing Indebtedness of Cofimeta and its Subsidiaries described on Schedule
5.2(e) hereto, as reduced from time to time, (y) other Indebtedness allowed
under Section 5.2(e)(xi) above and (z) future unsecured and secured (to the
extent secured by assets acceptable to the Agent) Indebtedness for working
capital and capital expenditures, provided that the aggregate amount permitted
pursuant to the foregoing clauses (y) and (z) shall not exceed $30,000,000 minus
the amount of the "Tranche B Loans" and "Tranche C Certificates", under, and as
defined in, the Mexican Facility Documents, in aggregate amount or such greater
amount consented to in writing by the Agent in its sole discretion.
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(f) Liens. Create, incur or suffer to exist any Lien on any of
the assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired, of the Company or any of
its Restricted Subsidiaries, other than:
(i) Liens for taxes not delinquent or for taxes being
contested in good faith by appropriate proceedings and as to which adequate
financial reserves have been established on its books and records;
(ii) Liens (other than any Lien imposed by ERISA or any
Environmental Law) created and maintained in the ordinary course of business
which do not secure obligations material in the aggregate and which would not
have a Material Adverse Effect and which constitute (A) pledges or deposits
under worker's compensation laws, unemployment insurance laws or similar
legislation, (B) good faith deposits in connection with bids, tenders, contracts
or leases to which the Company or any of its Subsidiaries is a party for a
purpose other than borrowing money or obtaining credit, including rent security
deposits, (C) liens imposed by law, such as those of carriers, warehousemen and
mechanics, if payment of the obligation secured thereby is not yet due, (D)
Liens securing taxes, assessments or other governmental charges or levies not
yet subject to penalties for nonpayment, and (E) pledges or deposits to secure
public or statutory obligations of the Company or any of its Subsidiaries, or
surety, customs or appeal bonds to which the Company or any of its Subsidiaries
is a party;
(iii) Liens affecting real property which constitute minor
survey exceptions or defects or irregularities in title, minor encumbrances,
easements or reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of such real property, provided that
all of the foregoing, in the aggregate, do not at any time materially detract
from the value of said properties or materially impair their use in the
operation of the businesses of the Company or any of its Subsidiaries;
(iv) Liens created pursuant to the Security Documents and
Liens expressly permitted by the Security Documents;
(v) Each Lien described in Schedule 5.2(f) hereto may be
suffered to exist upon the same terms as those existing on the date hereof, but
no increase in the principal amount thereof shall be permitted;
(vi) Any Lien created to secure payment of a portion of the
purchase price of, or existing at the time of acquisition of, any tangible fixed
asset acquired by the Company or any of its Restricted Subsidiaries may be
created or suffered to exist upon such fixed asset if the outstanding principal
amount of the Indebtedness secured by such Lien does not at any time exceed 100%
of the purchase price paid by the Company or such Restricted Subsidiary for such
fixed asset and the aggregate principal amount of all Indebtedness secured by
such Liens does not exceed the amount permitted under Section 5.2(e)(iv),
provided that such Lien does not encumber any other asset at any time owned by
the Company or such Restricted Subsidiary, and provided, further, that not more
than one such Lien shall encumber such fixed asset at any one time and neither
OASP I, OASP II, the Dutch Holding Company nor the French Acquisition Company
shall incur or permit or suffer any such Lien to exist;
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(vii) Liens in favor of the Company or any Guarantor as
security for Indebtedness of any Subsidiary to the Company or another Restricted
Subsidiary, provided that any such Liens are subordinated to the Liens in favor
of the Agent on terms satisfactory to the Agent;
(viii) The interest or title of a lessor under any operating
lease otherwise permitted under this Agreement with respect to the property
subject to such lease to the extent performance of the obligations of the
Company or its Restricted Subsidiary thereunder are not delinquent;
(ix) Liens on the real property owned by Restricted
Subsidiaries of BMG as of the Effective Date securing the Indebtedness permitted
by Section 5.2(e)(ix); and
(x) Liens on accounts receivable of Foreign Subsidiaries
which are not Canadian Subsidiaries securing the Indebtedness permitted by
Section 5.2(e)(xi) and other Liens on the assets of Cofimeta and its
Subsidiaries to the extent permitted by the proviso to Section 5.2(e).
(g) Merger; Acquisitions; Etc. Purchase or otherwise acquire,
whether in one or a series of transactions, directly or indirectly, by merger or
otherwise, all or a substantial portion of the business assets, rights, revenues
or property, real, personal or mixed, tangible or intangible, of any Person, or
all or a substantial portion of the Capital Stock of any other Person (an
"Acquisition"); nor merge or consolidate or amalgamate with any other Person or
take any other action having a similar effect; provided, however, that this
Section 5.2(g) shall not prohibit any merger or acquisition if (i) such merger
involves the Company, the Company shall be the surviving or continuing
corporation thereof, (ii) immediately before and after giving effect to such
merger or acquisition, no Default or Event of Default shall exist or shall have
occurred and be continuing and the representations and warranties contained in
Article IV and in the other Loan Documents shall be true and correct on and as
of the date thereof (both before and after such merger or acquisition is
consummated) as if made on the date such merger or acquisition is consummated,
(iii) at least 10 Business Days' prior to the consummation of such merger or
acquisition, the Company shall have provided to the Lenders an opinion of
counsel and a certificate of the Chief Financial Officer or Treasurer of the
Company (attaching pro forma computations acceptable to the Agent to demonstrate
compliance with all financial covenants hereunder), each stating that such
merger or acquisition complies with this Section 5.2(g), all laws and
regulations and that any other conditions under this Agreement relating to such
transaction have been satisfied, and such certificate shall contain such other
information and certifications as requested by the Agent and be in form and
substance satisfactory to the Agent, (iv) at least 10 Business Days' prior to
the consummation of such merger or acquisition, the Company shall have delivered
all acquisition documents and other agreements and documents relating to such
merger or acquisition, and the Agent shall have completed a satisfactory review
thereof and completed such other due diligence satisfactory to the Agent,
provided that if such acquisition is being done by an Unrestricted Subsidiary or
such merger involves Unrestricted Subsidiaries only, then the requirements of
this clause (iv) will be satisfied if the Company provides the Lenders with a
certificate representing that neither the Company nor any Restricted Subsidiary
shall be liable, directly or indirectly, for any of the Indebtedness or other
liabilities of such Unrestricted Subsidiary or for any Contingent Liabilities
with respect to any such Unrestricted Subsidiary except as permitted by Section
5.2(e), (v) immediately before and after giving effect to such merger or
acquisition, the pro forma Total Covenant Obligations to Total Covenant EBITDA
Ratio is less than or equal to the lesser of 4.5 to 1.0 or 0.25 below the level
required under Section 5.2(b), on a pro forma basis acceptable to the Agent,
(vi) both before and after giving effect to such merger and acquisition, the
Company is able to borrow at least $25,000,000 of additional Loans on a pro
forma basis acceptable to the Agent, (vii) the Company shall, at least 10
Business Days prior to the consummation of merger or acquisition, provide
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such other certificates and documents as requested by the Agent, in form and
substance satisfactory to the Agent, (viii) the target of such merger or
acquisition is in the same line of business as the Company, (ix) the target of
such merger or acquisition is located in the United States of America or Canada,
(x) the Board of Directors (or similar governing body) and the management of the
target of such merger or acquisition has approved such merger or acquisition and
(xi) the aggregate consideration paid or payable in connection with all
Acquisitions permitted by this proviso (excluding the Cofimeta Acquisition and
the OPI Acquisition and amounts paid or payable solely by Unrestricted
Subsidiaries (other than OPI) and investments and other transactions permitted
by Section 5.2(l)(viii)), including without limitation any Indebtedness assumed
in connection therewith or guarantees or other liabilities incurred in
connection therewith, shall not exceed $75,000,000. Notwithstanding the
foregoing, (x) the requirements listed in clauses (ii), (iii), (iv), (v), (vi),
(vii) and (ix) of this Section 5.2(g) shall not be required to be satisfied in
connection with any acquisition done solely by an Unrestricted Subsidiary,
provided that the terms of Section 5.2(e), Section 5.2(l) and all other terms
and provisions hereof shall be applicable, (y) the requirements listed in
clauses (v) and (vi) shall not apply to the Cofimeta Acquisition or the OPI
Acquisition if the OPI Acquisition occurs on or before January 31, 2000, the
aggregate consideration paid or payable in connection with the OPI Acquisition,
including without limitation any Indebtedness assumed in connection therewith or
guarantees or other liabilities incurred in connection therewith, will not
exceed the Dollar Equivalent of $12,000,000 and provided that all other terms
and provisions hereof shall be applicable and (z) neither OPI nor any Mexican
Subsidiary will make, directly or indirectly, any Acquisition or otherwise
assist or be involved in any Acquisition.
(h) Disposition of Assets; Etc. Sell, lease, license, transfer,
assign or otherwise dispose of all or any portion of its business, assets,
rights, revenues or property, real, personal or mixed, tangible or intangible,
whether in one or a series of transactions, other than inventory sold in the
ordinary course of business upon customary credit terms, the sale of accounts
receivable in connection with the factoring of accounts receivable in the
ordinary course of business of Foreign Subsidiaries which are not Canadian
Subsidiaries on customary terms and conditions and otherwise allowed pursuant
hereto and sales of scrap or obsolete material or equipment which are not
material in the aggregate, and shall not permit or suffer any Restricted
Subsidiary or OPI to do any of the foregoing; provided, however, that this
Section 5.2(h) shall not prohibit any such sale, lease, license, transfer,
assignment or other disposition if (i) the consolidated book value (disregarding
any write-downs of such book value other than ordinary depreciation and
amortization) of all of the business, assets, rights, revenues and property of
the Company and its Restricted Subsidiaries disposed of in any consecutive
twelve-month period shall be less than 10% of the consolidated book value of the
assets of the Company and its Restricted Subsidiaries as of the beginning of
such twelve month period and the aggregate book value of all assets disposed of
after the Effective Date shall be less than 25% of the consolidated book value
of assets of the Company and its Restricted Subsidiaries at the time of any such
disposition and if, immediately after such transaction, no Default or Event of
Default shall exist or shall have occurred and be continuing, (ii) sales as to
which proceeds are used within 180 days (or 360 days if such sale involves the
Planned Asset Sales) to purchase or construct assets of at least equivalent
value to those sold, (iii) transfers of assets from any Subsidiary to the
Company or a Guarantor which is a Wholly Owned Subsidiary, (iv) any transfer of
assets to the Mexican Subsidiaries to the extent permitted by Section 5.2(l)(v),
and (v) any transfer of all of the Capital Stock of the French Acquisition
Company owned by OASP I and OASP II to the Dutch Holding Company in exchange for
100% of the Capital Stock of the Dutch Holding Company and otherwise in
conformance with all of the terms of this Agreement; provided, however, in the
case of any of the foregoing permitted sales, leases, licenses, transfers,
assignments or other dispositions under this Section 5.2(h) (an "Asset Sale")
the Company shall not, and shall not permit any of its Restricted Subsidiaries
to, consummate an Asset Sale, other than pursuant to clauses (iii), (iv) or (v)
of this Section 5.2(h), unless (A) the Company (or the Subsidiary, as the case
may be) receives consideration at the time of such Asset Sale at least equal to
the
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fair market value (evidenced by a resolution of the Board of Directors set forth
in an officer's certificate delivered to the Agent) of the assets and (B) at
least 75% of the consideration therefor received by the Company or such
Subsidiary is in the form of cash, provided that cash equivalents and the
assumption of Indebtedness of the Company or any Guarantor and the unconditional
release of the Company or such Guarantor from such Indebtedness in connection
with such Asset Sale, in each case acceptable to the Agent, shall be considered
cash for purposes of this Section 5.2(h); provided that the amount of (x) any
liabilities (as shown on the Company's or such Subsidiary's most recent balance
sheet), of the Company or any Subsidiary that are assumed by the transferee of
any such assets such that the Company or such Subsidiary have no further
liability and (y) any securities, notes or other obligations received by the
Company or any such Subsidiary from such transferee that are converted by the
Company or such Subsidiary into cash (to the extent of the cash received), shall
be deemed to be cash for purposes of this provision and the definition of Net
Cash Proceeds, and the Agent promptly shall obtain a first priority security
interest in any non cash consideration for any Asset Sale.
(i) Nature of Business. Make any material change in the nature of
its business from that engaged in on the date of this Agreement or engage in any
other businesses other than those in which it is engaged on the date of this
Agreement.
(j) Dividends and Other Restricted Payments. Make, pay, declare
or authorize any dividend, payment or other distribution in respect of any class
of its Capital Stock or any dividend, payment or distribution in connection with
the redemption, purchase, retirement or other acquisition, directly or
indirectly, of any Capital Stock other than such dividends, payments or other
distributions (i) to the extent payable solely in shares of common stock of the
Company, (ii) to the extent payable to the Company by a Restricted Subsidiary of
the Company, (iii) dividends and distributions on Preferred Stock to the extent
permitted under Section 5.2(s), (iv) if no Event of Default or Default exists or
would be caused thereby, an aggregate amount not to exceed $1,000,000 made after
the Effective Date, (v) which in aggregate amount do not exceed 25% of the Net
Income accrued during fiscal quarters ending after the Effective Date for which
the Total Covenant Obligations to Total Covenant EBITDA Ratio was not greater
than 3.0 to 1.0, provided that both before and after the making or declaration
of such dividend, payment or other distribution (A) the pro forma Total Covenant
Obligations to Total Covenant EBITDA Ratio is not greater than 3.0 to 1.0, on a
pro forma basis acceptable to the Agent, (B) the Company is able to borrow at
least $25,000,000 of additional Loans on a pro forma basis acceptable to the
Agent and (C) no Default or Event of Default shall have occurred or be caused
thereby, and (vi) if no Event of Default or Default exists or would be caused
thereby, an aggregate amount not to exceed $2,500,000 for all employees made
after the Effective Date for the purpose of redeeming the Capital Stock of the
Company owned by any employees of the Company, other than a Permitted Holder,
upon the termination of the employment by the Company or any of its Restricted
Subsidiaries of such employee, provided that (A) any amounts used to redeem such
Capital Stock under this clause (vi) shall first reduce the amount allowed or
accumulated under Section 5.2(j)(iv) until the amount allowed thereunder is
exhausted and then shall reduce the amount allowed under Section 5.2(j)(v) and
(B) the amounts payable for the redemption of such Capital Stock will not be
paid any sooner or in any greater amount than contractually required. The
Company will not, and will not permit any of its Restricted Subsidiaries, to
issue any Preferred Stock or any Disqualified Stock, other than (1) any
Preferred Stock which does not require any dividends, payments, redemptions or
other distributions of any kind until at least one year after the later of the
Revolving Credit Termination Date, the Tooling Revolving Credit Termination Date
or the Maturity Date, (2) the existing ▇▇▇▇▇▇▇ Preferred Stock and (3) any other
Preferred Stock or Disqualified Stock which meets all of the requirements for
the issuance by the Company of Subordinated Debt (i.e. all payments and other
obligations thereunder are expressly subordinate and junior in right and
priority of payment to the Advances and other Indebtedness of such
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Person to the Lenders in manner and by agreement satisfactory in form and
substance to the Agent and such Preferred Stock or Disqualified Stock is subject
to such other terms and provisions, including without limitation maturities,
covenants, defaults, rates and fees, acceptable to the Agent), and such
Preferred Stock and Disqualified Stock allowed under this clause (3) shall be
treated as if it were Subordinated Debt for all purposes of this Agreement and
is defined herein as "Permitted Disqualified Stock".
(k) Capital Expenditures. Acquire or contract to acquire any
fixed asset or make any other Capital Expenditure if the aggregate purchase
price and other acquisition costs of all such fixed assets acquired and other
Capital Expenditures made by the Company or any of its Restricted Subsidiaries
during any fiscal year of the Company would exceed, on a consolidated basis, an
amount equal to $37,500,000 for the fiscal year of the Company ending March 31,
1999, $47,000,000 for the fiscal year of the Company ending March 31, 2000, or
$50,000,000 for any fiscal year thereafter, plus the sum of (i) 20% of the net
book value, or, if appraisals of such fixed assets have been obtained, 15% of
the orderly liquidation value of such fixed assets which consist of equipment
and of the fair market value of real property which consists of real estate (in
each case, as determined by an appraisal acceptable to the Agent) acquired in an
Acquisition (other than the Cofimeta Acquisition) permitted hereunder by the
Company and its Restricted Subsidiaries, to be added as of the effective date of
such Acquisition (and on a pro rata basis for the fiscal year in which such
Acquisition occurs), plus (ii) the amount of Capital Expenditures allowed for
the previous fiscal year (with giving effect to any increase in the amount
thereof caused by this clause (ii), commencing with the fiscal year ending March
31, 1999) minus the amount of actual Capital Expenditures for the previous
fiscal year. For purposes of this Section 5.2(k), the Mexican Facility
Obligations in an amount not to exceed $75,000,000 shall not constitute Capital
Expenditures.
(l) Loans, Advances and Investments. Make any loan or advance,
including without limitation any transfer, of any of its funds or property or
make any other extension of credit to, or increase its investment or acquire any
additional interest whatsoever in, any Person, or enter into any joint venture
or similar arrangement with any other Person, or permit OPI to do any of the
foregoing, other than each of the following if no Event of Default exists:
(i) loans and advances to Guarantors which are evidenced by
promissory notes payable on demand and in form and substance satisfactory to the
Agent and which are pledged to the Agent for the benefit of the Lenders and
investments in Guarantors;
(ii) loans and advances to, and investments in, the French
Acquisition Company to be made on or within three Business Days of the Effective
Date to consummate the Cofimeta Acquisition in an aggregate amount not to exceed
$73,000,000 and as described in the Cofimeta Acquisition Documents, provided
that if any of the foregoing are loans or advances they shall be evidenced by a
promissory note payable on demand and in form and substance satisfactory to the
Agent and pledged on a first priority basis and pursuant to documents acceptable
to the Agent for the benefit of itself and the Lenders;
(iii) additional loans and advances to, and investments in, the French
Acquisition Company, Cofimeta and/or OPI in an aggregate amount not to exceed
$10,000,000, provided that if any of the foregoing is a loan or advance it shall
be evidenced by a promissory note payable on demand and in form and substance
satisfactory to the Agent and pledged, on a first priority basis and pursuant to
documents acceptable to the Agent, to the Agent for the benefit of itself and
the Lenders;
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(iv) loans and advances in an aggregate amount not to exceed
$12,000,000 to a wholly owned Subsidiary which is a Restricted Subsidiary,
whether currently existing or to be formed in the future, to consummate the OPI
Acquisition, provided that if any such loan or advance is to a Subsidiary which
is not a Guarantor such Subsidiary and each Subsidiary which is not a Guarantor
owning such Subsidiary, directly or indirectly, shall not incur or maintain any
Indebtedness (except as otherwise permitted by this Agreement if such Subsidiary
is the French Acquisition Company or Cofimeta) and at least 65% of the Capital
Stock of the Subsidiary owning OPI, directly or indirectly, which is owned
directly by a Guarantor or the Company shall be pledged to the Agent, for the
benefit of itself and the Lenders on a first priority basis, by such Guarantor
or the Company, as the case may be;
(v) transfers of fixed assets by the Company and its Subsidiaries to
the Mexican Subsidiaries for the purpose of completing the Mexican Manufacturing
Facility, provided that the aggregate fair market value of such fixed assets
does not exceed $20,000,000;
(vi) advances of Tooling Revolving Credit Loans borrowed by the
Company to Cofimeta, OPI or the Mexican Subsidiaries in aggregate outstanding
amount not to exceed $35,000,000 for the sole purpose of financing Tooling
Contracts of Cofimeta, OPI or the Mexican Subsidiaries, provided that such
Indebtedness of Cofimeta, OPI or the Mexican Subsidiaries to the Company would
constitute Tooling Indebtedness, no assets relating to such Tooling Contracts
are included in the Tooling Revolving Credit Borrowing Base or the Borrowing
Base and such advances are evidenced by promissory notes payable on demand and
in form and substance satisfactory to the Agent and which are pledged, on a
first priority basis and pursuant to documents acceptable to the Agent, to the
Agent for the benefit of itself and the Lenders;
(vii) transfer of all of the Capital Stock of the French Acquisition
Company owned by OASP I and OASP II to the Dutch Holding Company in exchange for
100% of the Capital Stock of the Dutch Holding Company, provided that (A) OASP I
shall grant to the Agent for the benefit of itself and the Lenders a first
priority enforceable pledge on 65% of the Capital Stock of the Dutch Holding
Company, (B) the pledge of 65% of the Capital Stock of the French Acquisition
Company shall be released and (C) the Company shall deliver such documents and
opinions in connection therewith as requested by the Agent and all other terms
of this Agreement relating to the Dutch Holding Company and its formation are
satisfied; provided that it is acknowledged that if the Dutch Holding Company
owns any Unrestricted Subsidiary formed or acquired after the Effective Date
(other than OPI) the Agent and the Company shall mutually agree on a method by
which the pledge of the Dutch Holding Company is non recourse to such
Unrestricted Subsidiary;
(viii) other loans and advances to, and investments in and guarantees
by the Company (valued at the maximum amount that could be payable thereunder,
and provided that all such guarantees shall be collection guarantees, not
payment guarantees, and be on terms and conditions satisfactory to the Agent),
of the Indebtedness of Unrestricted Subsidiaries, Restricted Subsidiaries which
are not Wholly Owned Subsidiaries or joint ventures which do not exceed
$30,000,000 for all of the foregoing in aggregate outstanding amount (with the
outstanding amount thereof being deemed decreased by any cash repayments of such
loans or advances or cash dividends paid to the Company or any Restricted
Subsidiary with respect to any such investments), provided that (A) if such
transaction involves a loan or advance, such loans and advances are evidenced by
promissory notes payable on demand or on such other terms acceptable to the
Agent and in form and substance satisfactory to the Agent and which are pledged,
on a first priority basis and pursuant to documents acceptable to the Agent, to
the Agent for the benefit of itself and the Lenders, (B) both before and after
giving effect to such loan, advance or investment, the pro forma Total Covenant
Obligations to Total Covenant EBITDA Ratio is less than or
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equal to the lesser of 4.50 to 1.0 or 0.25 below the level required under
Section 5.2(b), on a pro forma basis acceptable to the Agent, (C) both before
and after giving effect to such loan or advance the Company is able to borrow at
least $25,000,000 of additional Loans on a pro forma basis acceptable to the
Agent, and (D) no Event of Default or Default exists or would be caused thereby
and the Company provides such certificates and legal opinions as requested by
the Agent in connection therewith; and
(ix) loans, advances, and investments described on Schedule 5.2(l)
hereto, but no increase in the amount thereof as such loans, advances and
investments may be reduced from time to time.
(m) Transactions with Affiliates. Other than as permitted by
Section 5.2(u), enter into or permit to exist any transaction or series of
related transactions (including without limitation the purchase, sale, lease or
exchange of any property, employee compensation arrangements or rendering of any
service) with any Affiliate of the Company (an "Affiliate Transaction") unless
the terms of such transaction (i) are no less favorable to the Company or such
Restricted Subsidiary than those that could be obtained at the time of such
transaction in a comparable transaction in arm's-length dealings with a Person
who is not such an Affiliate, (ii) if such Affiliate Transaction (or series of
related Affiliated Transactions) involves aggregate payments in an amount in
excess of $1,000,000 in any one year, (A) are set forth in writing, (B) comply
with clause (i) of this Section 5.2(m) and (C) have been approved by a majority
of disinterested members of the Board of Directors of the Company, and (iii) if
such Affiliate Transaction (or series of related Affiliate Transactions)
involves aggregate payments in an amount in excess of $5,000,000 in any one
year, (A) comply with clause (ii) and (B) have been determined by a nationally
recognized investment banking firm to be fair, from a financial standpoint, to
the Company and its Restricted Subsidiaries.
(n) Sale and Leaseback and other Financing Transactions. Other
than the Mexican Facility pursuant to the terms of the Mexican Facility
Documents delivered to the Agent prior to the Effective Date, (i) become or
remain liable in any way, whether directly or by assignment or as a guarantor or
other contingent obligor, for the obligations of the lessee or user under any
lease or contract for the use of any real or personal property if such property
is owned on the date of this Agreement or thereafter acquired by the Company or
any of its Subsidiaries and has been or is to be sold or transferred to any
other Person and was, is or will be used by the Company or any such Subsidiary
for substantially the same purpose as such property was used by the Company or
such Subsidiary prior to such sale or transfer, or (ii) enter into or become or
remain liable in any way, whether directly or by assignment or as a guarantor or
other contingent obligor or otherwise, any synthetic lease, tax
ownership/operating lease, off balance sheet financing or similar financing,
provided that it is acknowledged that this clause (ii) does not prohibit normal
operating leases entered into in the ordinary course of business as determined
by the Agent. It is acknowledged and agreed by the Borrowers that (x) the
aggregate outstanding amount under the Mexican Facility or otherwise pursuant to
the Mexican Facility Documents shall not exceed $75,000,000, as reduced from
time to time, (y) the obligations and liabilities under the Mexican Facility
Tranche A Guaranty will not exceed the outstanding amount of the Mexican
Facility Tranche A Loans, as reduced from time to time, and (z) other than the
Mexican Facility Guaranty, there are no liabilities or obligations, direct,
contingent or otherwise, of any kind owing by the Company of any of its
Subsidiaries (other than the Mexican Subsidiaries) pursuant to the Mexican
Facilities.
(o) Negative Pledge Limitation. Enter into any agreement with any
Person, other than the Lenders or the Agent pursuant hereto and other than the
existing provisions without amendment contained in the ▇▇▇▇▇▇▇ Preferred Stock
Documents and in the agreements listed on Schedule 5.2(o), which prohibits or
limits the ability of the Company or any Restricted Subsidiary to
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create, incur, assume or suffer to exist any Lien upon any of its assets,
rights, revenues or property, real, personal or mixed, tangible or intangible,
whether now owned or hereafter acquired.
(p) FSC Commissions. Pay or become obligated for the payment
during any fiscal year of the Company, commissions to all related wholly owned
foreign sales corporations in excess of an amount acceptable to the Agent in
aggregate amount plus reimbursement of the reasonable administrative expenses of
such wholly owned foreign sales corporations.
(q) Inconsistent Agreements. Enter into any agreement containing
any provision which would be violated or breached by this Agreement or any of
the transactions contemplated hereby or by performance by the Company or any of
its Subsidiaries of its obligations in connection therewith.
(r) Subsidiary Dividends. Other than those restrictions existing
as of the Effective Date or described in Schedule 5.2(o) without giving effect
to any amendment thereof on or after the Effective Date, permit any of its
Restricted Subsidiaries, directly or indirectly, to create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction
which by its terms materially restricts the ability of any such Subsidiary to
(i) pay dividends or make any other distributions on such Restricted
Subsidiary's Capital Stock, (ii) pay any Indebtedness owed to the Company or any
of its other Restricted Subsidiaries, (iii) make any loans or advances to the
Company or any of such other Restricted Subsidiaries or (iv) transfer any
material portion of its assets to the Company or any of such other Restricted
Subsidiaries.
(s) Preferred Stock. Make any amendment or modification to any
▇▇▇▇▇▇▇ Preferred Stock Document, other than the adjustment in the price of the
▇▇▇▇▇▇▇ Preferred Stock made prior to the Effective Date based on post closing
adjustments and which do not result in any additional obligations of ▇▇▇▇▇▇▇ or
of the Company or any of its Restricted Subsidiaries, or enter into any other
agreement or document relating thereto other than the documents listed on
Schedule 4.18 hereto or make, pay, declare or authorize any dividend, payment or
other distribution with respect to any Preferred Stock or any dividend, payment
or distribution in connection with the redemption, purchase, retirement or other
acquisition, directly or indirectly, of any Preferred Stock other than as
required under the ▇▇▇▇▇▇▇ Preferred Stock Documents listed on Schedule 4.18
hereto, provided that no dividend, payment or other distribution in respect to
the Preferred Stock or dividend, payment or distribution in connection with the
redemption, purchase, retirement or other acquisition, directly or indirectly,
of any Preferred Stock, including those required under the ▇▇▇▇▇▇▇ Preferred
Stock Documents, will be made if any Event of Default exists under Section
6.1(a) or would be caused thereby.
(t) Other Indebtedness and Agreements. Make any amendment or
modification to any indenture, note or other agreement evidencing or governing
any Indebtedness (other than Indebtedness hereunder of the Company or any of its
Subsidiaries) or to any Tax Sharing Agreement or any Mexican Facility Document,
or directly or indirectly voluntarily prepay, defease or in substance defease,
purchase, redeem, retire or otherwise acquire any such Indebtedness or any
Mexican Facility Obligation, (except, when no Default or Event of Default
exists, for the prepayment of Subordinated Debt solely from the Net Cash
Proceeds received by the Company from the primary sale or sales of shares of
common stock (which may not be Disqualified Stock) of the Company pursuant to
any one or more public offerings thereof), or designate any Indebtedness (other
than the Indebtedness under the Loan Documents and under Hedging Agreements with
Lenders) as "Designated Senior Debt" under the Senior Subordinated Debt
Documents.
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(u) Management Fees. Pay any management, consulting or similar
fees or amounts to any of its Affiliates other than (i) to the Company or a
Guarantor and (ii) as described on Schedule 5.2(u), without giving effect to any
amendment or modification of the agreement described on Schedule 5.2(u),
provided that no such management, consulting or similar fees or amounts (other
than out of pocket expenses) shall be paid pursuant to this clause (ii) if any
Event of Default or Default exists or would be caused thereby, and Oxford
Investment has acknowledged and agreed that no such management, consulting or
similar fees or amounts (other than out of pocket expenses) will be so paid.
(v) Restricted Subsidiaries. Except with the consent of the
Agent, which consent will not be unreasonably withheld, permit or suffer any
Restricted Subsidiary to not be a Wholly Owned Subsidiary, other than Laserweld
International, L.L.C. ("Laserweld") or Creative, provided that no loans or
advances to, investments in or sales or other transfers of assets to Creative or
Laserweld have been or will be made by the Company or any Restricted Subsidiary
at any time on or after the Effective Date, and the Company represents that
neither Laserweld nor Creative is operating as of the Effective Date.
5.3 Additional Covenants.
(a) Other Terms. If at any time any Borrower or Guarantor shall
enter into or be a party to any instrument or agreement with respect to any
Indebtedness which in the aggregate, together with any related Indebtedness,
exceeds $500,000, including all such instruments or agreements in existence as
of the date hereof and all such instruments or agreements entered into after the
date hereof, relating to or amending any terms or conditions applicable to any
of such Indebtedness which includes covenants, terms, conditions or defaults not
substantially provided for in this Agreement or more favorable to the lender or
lenders thereunder than those provided for in this Agreement, then the Company
shall promptly so advise the Agent and the Lenders. Thereupon, if the Agent
shall request, upon notice to the Company, the Agent and the Lenders shall enter
into an amendment to this Agreement or an additional agreement (as the Agent may
request), providing for substantially the same covenants, terms, conditions and
defaults as those provided for in such instrument or agreement to the extent
required and as may be selected by the Agent. In addition to the foregoing, any
covenants or defaults or similar provisions (which include without limitation
any provisions requiring any mandatory prepayments or defeasance under the
Senior Subordinated Debt Documents or the Mexican Facility Documents) contained
in any Senior Subordinated Debt Document or Mexican Facility Documents not
substantially provided for in this Agreement or more favorable to the holders of
Subordinated Debt or Mexican Facility Obligations issued in connection therewith
are hereby incorporated by reference into this Agreement to the same extent as
if set forth fully herein, and no subsequent amendment, waiver, termination or
modification thereof shall affect any such covenants, terms, conditions or
defaults as incorporated herein.
(b) Restricted and Unrestricted Subsidiaries. Neither the Company
nor any Restricted Subsidiary of the Company shall be liable at any time,
directly or indirectly, for any of the Indebtedness or other liabilities of any
such Unrestricted Subsidiary or for any Contingent Liabilities with respect to
any Unrestricted Subsidiary except as permitted by Section 5.2(e). No Restricted
Subsidiary may be designated as an Unrestricted Subsidiary at any time without
the prior written approval of the Agent and the Required Lenders. Any
Unrestricted Subsidiary may be designated as a Restricted Subsidiary by the
Company at any time provided that such designation is approved by the Agent.
Neither OPI, any Mexican Subsidiary, the Dutch Holding Company, the French
Acquisition Company, Cofimeta nor any of their Subsidiaries is or will be a
guarantor or otherwise directly or contingently liable for any of the
Indebtedness or other obligations pursuant to the Senior Subordinated Debt
Documents, and the Borrowers are and will be at all times in compliance with all
terms and conditions under the Senior Subordinated Debt Documents.
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ARTICLE VI.
DEFAULT
6.1 Events of Default. The occurrence of any one of the following
events or conditions shall be deemed an "Event of Default" hereunder unless
waived pursuant to Section 8.1:
(a) Nonpayment. The Company shall fail to pay when due, whether
at stated maturity, by acceleration or otherwise, any principal on the Loans or
any reimbursement obligation under Section 3.3 (whether by deemed disbursement
of a Revolving Credit Borrowing or otherwise), or, within five days after
becoming due, any interest on the Loans or any fees or any other amount payable
hereunder; or
(b) Misrepresentation. Any representation or warranty made by the
Company or any of the Guarantors in Article IV hereof, or in any Security
Document, or any other certificate, report, financial statement or other
document furnished by or on behalf of the Company or any of the Guarantors in
connection with this Agreement, shall prove to have been incorrect in any
material respect when made or deemed made; or
(c) Certain Covenants. The Company shall fail to perform or
observe any term, covenant or agreement contained in Article V hereof; or
(d) Other Defaults. Any default which remains uncured beyond any
applicable cure period shall exist under any material purchase or tooling
contract that could have a Material Adverse Effect, or the Company or any
Guarantor shall fail to perform or observe any other term, covenant or agreement
contained in this Agreement or in any other Loan Document, and any such failure
shall remain unremedied for 15 calendar days after written notice thereof shall
have been given to the Company by the Agent; or
(e) Cross Default. Failure of the Company or any of its
Restricted Subsidiaries to pay when due any Indebtedness aggregating in excess
of $3,000,000 or any Mexican Facility Obligations ("Material Obligations") or
the default by the Company or any of its Restricted Subsidiaries in the
observance or performance (beyond the applicable grace period with respect
thereto, if any) of any term, provision or condition contained in any agreement
under which any such Material Obligations was created or is governed, or any
other event shall occur or condition exist, the effect of which default or event
is to cause, or to permit the holder or holders of such Material Obligations to
cause, such Material Indebtedness to become due prior to its stated maturity; or
any Material Obligations of the Company or any of its Restricted Subsidiaries
shall be declared to be due and payable or required to be prepaid or repurchased
(other than by a regularly scheduled payment) prior to the stated maturity
thereof; or
(f) Judgments. One or more judgments or orders for the payment of
money in an aggregate amount of $4,000,000 shall be rendered against the Company
or any of its Restricted Subsidiaries, or any other judgment or order (whether
or not for the payment of money) shall be rendered against or shall affect the
Company or any of its Restricted Subsidiaries which causes or could cause a
Material Adverse Effect, and either (i) such judgment or order shall have
remained unsatisfied and the Company or such Restricted Subsidiary shall not
have taken action necessary to stay enforcement thereof by reason of pending
appeal or otherwise, prior to the expiration of the applicable period of
limitations
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for taking such action or, if such action shall have been taken, a final order
denying such stay shall have been rendered, or (ii) enforcement proceedings
shall have been commenced by any creditor upon any such judgment or order; or
(g) ERISA. The occurrence of a Reportable Event that results in
or could result in liability of the Company or any of its ERISA Affiliates to
the PBGC or to any Plan and such Reportable Event is not corrected within 30
days after the occurrence thereof; or the occurrence of any Reportable Event
which could constitute grounds for termination of any Plan of the Company or any
of its ERISA Affiliates by the PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer any such Plan and such
Reportable Event is not corrected within 30 days after the occurrence thereof;
or the Company or any of its ERISA Affiliates shall fail to pay when due any
liability to the PBGC or to a Plan; or any Person engages in a Prohibited
Transaction with respect to any Plan which results in or could result in
liability of the Company, any of its ERISA Affiliates, any Plan of the Company
or any of its ERISA Affiliates or any fiduciary of any such Plan; or the PBGC
shall have instituted proceedings to terminate, or to cause a trustee to be
appointed to administer, any Plan of the Company or any of its ERISA Affiliates;
or failure by the Company or any of their ERISA Affiliates to make a required
installment or other payment to any Plan within the meaning of Section 302(f) of
ERISA or Section 412(n) of the Code that results in or could result in liability
of the Company or any of their ERISA Affiliates to the PBGC or any Plan; or the
withdrawal of the Company or any of its ERISA Affiliates from a Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(9a)(2) of ERISA; or the Company or any of its ERISA Affiliates becomes an
employer with respect to any Multiemployer Plan without the prior written
consent of the Agent, and in each case above, such event or condition, together
with all other events or conditions, if any, could subject the Company and its
Restricted Subsidiaries to any tax, penalties or other liability which in the
aggregate may exceed $4,000,000; or
(h) Insolvency, Etc. The Company or any of its Restricted
Subsidiaries or Mexican Subsidiaries shall be dissolved or liquidated (or any
judgment, order or decree therefor shall be entered), or shall generally not pay
its debts as they become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit of
creditors, or shall institute, or there shall be instituted against the Company
or any of its Restricted Subsidiaries or Mexican Subsidiaries any proceeding or
case seeking to adjudicate it a bankrupt or insolvent or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief or protection of debtors or seeking the entry of an
order for relief, or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its assets, rights,
revenues or property, and, if such proceeding is instituted against the Company
or such Restricted Subsidiary or Mexican Subsidiary and is being contested by
the Company or such Restricted Subsidiary or Mexican Subsidiary, as the case may
be, in good faith by appropriate proceedings, such proceeding shall remain
undismissed or unstayed for a period of 60 days; or the Company or such
Restricted Subsidiary or Mexican Subsidiary shall take any action (corporate or
other) to authorize or further any of the actions described above in this
subsection; or
(i) Security Documents. Any event of default described in any
Loan Document shall have occurred and be continuing, or any material provision
of any Loan Document shall at any time for any reason cease to be valid and
binding and enforceable against any obligor thereunder, or the validity, binding
effect or enforceability thereof shall be contested by any Person, or any
obligor, shall deny that it has any or further liability or obligation
thereunder, or any material provision thereof
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shall be terminated, invalidated or set aside, or be declared ineffective or
inoperative or in any way cease to give or provide to the Lenders and the Agent
the benefits purported to be created thereby; or
(j) Control. Any Change of Control shall occur; or
(k) Cofimeta Acquisition; Mexican Facility. (i) the Cofimeta
Acquisition shall be unwound, reversed or otherwise rescinded in whole or in any
material part for any reason, (ii) Company shall agree to any material amendment
to, or waiver any of its material rights under, or otherwise change any material
terms of, any of the Cofimeta Acquisition Documents as in effect on February 4,
1999, in a manner adverse to Company or any of its Subsidiaries or to Lenders
without the prior written consent of Agent, or (iii) any commitment to lend or
other obligation to advance funds pursuant to the Mexican Facility or otherwise
under the Mexican Facility Documents shall be terminated for any reason or any
Loan Agreement Event of Default or other default shall occur under the Mexican
Facility Documents.
6.2 Remedies. (a) Upon the occurrence and during the continuance of
any Event of Default, the Agent may and, upon being directed to do so by the
Required Lenders, shall by written notice to the Company (i) terminate the
Commitments or (ii) declare the outstanding principal of, and accrued interest
on, the Notes, all unpaid reimbursement obligations in respect of drawings under
Letters of Credit and all other amounts owing under this Agreement to be
immediately due and payable, or (iii) demand immediate delivery of cash
collateral, and the Company agrees to deliver such cash collateral upon demand,
in an amount equal to the maximum amount that may be available to be drawn at
any time prior to the stated expiry of all outstanding Letters of Credit, or any
one or more of the foregoing, whereupon the Commitments shall terminate
forthwith and all such amounts, including such cash collateral, shall become
immediately due and payable, provided that in the case of any event or condition
described in Section 6.1(h) with respect to the Company or any Guarantor, the
Commitments shall automatically terminate forthwith and all such amounts,
including such cash collateral, shall automatically become immediately due and
payable without notice; in all cases without demand, presentment, protest,
diligence, notice of dishonor or other formality, all of which are hereby
expressly waived. Such cash collateral delivered in respect of outstanding
Letters of Credit shall be deposited in a special cash collateral account to be
held by the Agent as collateral security for the payment and performance of the
Company's obligations under this Agreement to the Lenders and the Agent.
(b) The Agent may and, upon being directed to do so by the
Required Lenders, shall, in addition to the remedies provided in Section 6.2(a),
exercise and enforce any and all other rights and remedies available to it or
the Lenders, whether arising under any Loan Document or under applicable law, in
any manner deemed appropriate by the Agent, including suit in equity, action at
law, or other appropriate proceedings, whether for the specific performance (to
the extent permitted by law) of any covenant or agreement contained in any Loan
Document or in aid of the exercise of any power granted in any Loan Document.
(c) Upon the occurrence and during the continuance of any Event
of Default, each Lender may at any time and from time to time, without notice to
the Company (any requirement for such notice being expressly waived by the
Company) set off and apply against any and all of the obligations of the Company
now or hereafter existing under this Agreement, whether owing to such Lender or
any other Lender or the Agent, any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Company and
any property of the Company from time to time in possession of such Lender,
irrespective of whether or not such Lender shall have made any demand
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hereunder and although such obligations may be contingent and unmatured. The
Company hereby grants to the Lenders and the Agent a lien on and security
interest in all such deposits, indebtedness and property as collateral security
for the payment and performance of the obligations of the Company under this
Agreement. The rights of such Lender under this Section 6.2(c) are in addition
to other rights and remedies (including, without limitation, other rights of
setoff) which such Lender may have.
(d) Notwithstanding anything in this Agreement or any Loan
Document to the contrary, on the Revolving Credit Termination Date each Lender
agrees, unconditionally and irrevocably, that it will purchase, either through
an assignment or a participation or such other manner required by the Agent, an
interest in all of the Revolving Credit Advances then outstanding, including all
U.S. Advances and all Canadian Advances (whether or not such Lender is a
Canadian Lender), such that each Lender's share of each Revolving Credit Advance
is equal to its pro rata share thereof based on the amount its Revolving Credit
Commitment bears to the aggregate Revolving Credit Commitment of all Lenders.
Such assignments and participations will be made pursuant to such procedures and
documents required by the Agent, and all appropriate adjustments among the
Lenders will be made. Each Lender shall be absolutely and unconditionally
obligated under this Section 6.2(d) and such obligation shall not be affected by
any circumstance, including, without limitation, (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender has or may have against the
Agent, First Chicago/NBD Canada or the Company or any if its Subsidiaries or
anyone else for any reason whatsoever; (B) the occurrence or continuance of a
Default or an Event of Default; (C) any adverse change in the condition
(financial or otherwise) of the Company or any of its Subsidiaries; (D) any
breach of this Agreement or any other agreement by any other Lender (provided
that any Defaulting Lender shall not be entitled to receive any payments or
other transfers under this Section 6.2(d) and the Agent will make all
appropriate adjustments hereunder), the Company or any Guarantor; or (E) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing. The Borrowers shall be liable, jointly and severally, for any
withholding taxes, if any, which may be payable under Section 3.6 as a result of
such participations or assignments.
6.3 Distribution of Proceeds of Collateral. All proceeds of any
realization on the collateral pursuant to the Security Documents and any
payments received by the Agent or any Lender subsequent to and during the
continuance of any Event of Default, shall be allocated and distributed by the
Agent as follows:
(a) First, to the payment of all costs and expenses and other
amounts owing to the Agent, including without limitation all attorneys' fees, in
connection with the enforcement of the Security Documents and otherwise
administering this Agreement;
(b) Second, to the payment of all fees, including commitment
fees, owing to the Lenders pursuant to this Agreement and the Notes on a pro
rata basis (other than Acceptance Fees and fees which are payable solely to
the Agent or any Lender directly) in accordance with the respective Advances of
the Lenders or any other amounts owing to the Agent, for application to payment
of such liabilities;
(c) Third, to the Lenders and beneficiaries of the Mexican
Facility Tranche A Guaranty on a pro rata basis in accordance with the
respective Advances of the Lenders consisting of interest owing to the Lenders
under this Agreement and the Notes, the obligations under the Mexican Facility
Tranche A Guaranty allocable to interest on the Mexican Facility Tranche A Loans
and net obligations and liabilities relating to Hedging Agreements, for
application to payment of such liabilities;
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(d) Fourth, to the Lenders and beneficiaries of the Mexican
Facility Tranche A Guaranty on a pro rata basis in accordance with the
respective Advances of the Lenders consisting of principal (including without
limitation any cash collateral for any outstanding Letters of Credit) and the
respective obligations under the Mexican Facility Tranche A Guaranty allocable
to principal on the Mexican Facility Tranche A Loans, for application to payment
of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to
the Lenders under this Agreement on a pro rata basis in accordance with the
respective Advances of the Lenders for application to payment of such
liabilities; and
(f) Sixth, to the Company, its Restricted Subsidiaries or such
other Person as may be legally entitled thereto.
Notwithstanding the foregoing, no payments of principal, interest or fees
delivered to the Agent for the account of any Defaulting Lender shall be
delivered by the Agent to such Defaulting Lender. Instead, such payments shall,
for so long as such Defaulting Lender shall be a Defaulting Lender, be held by
the Agent, and the Agent is hereby authorized and directed by all parties hereto
to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due to the Agent,
and
(ii) Second, to Loans required to be made by such
Defaulting Lender on any borrowing date to the extent such Defaulting Lender
fails to make such Loans.
Notwithstanding the foregoing, upon the termination of all Commitments and the
payment and performance of all of the Advances and other obligations owing
hereunder (other than those owing to a Defaulting Lender), any funds then held
in escrow by the Agent pursuant to the preceding sentence shall be distributed
to each Defaulting Lender, pro rata in proportion to amounts that would be due
to each Defaulting Lender but for the fact that it is a Defaulting Lender.
ARTICLE VII.
THE AGENT AND THE LENDERS
7.1 Appointment and Authorization. Each Lender hereby irrevocably
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Loan Documents as are delegated to the Agent
by the terms hereof or thereof, together with all such powers as are reasonably
incidental thereto. The provisions of this Article VII are solely for the
benefit of the Agent and the Lenders, and the Borrowers shall not have any
rights as a third party beneficiary of any of the provisions hereof. In
performing its functions and duties under this Agreement, the Agent shall act
solely as agent of the Lenders and does not assume and shall not be deemed to
have assumed any obligation towards or relationship of agency or trust with or
for any Borrower.
7.2 Agent and Affiliates. NBD Bank in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise or refrain from exercising the same as though it were not the
Agent. NBD Bank and its Affiliates may (without having to account therefor to
any Lender) accept deposits from, lend money to, and generally engage in any
kind of banking, trust, financial advisory or other business with the Company or
any of its Subsidiaries as if it
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were not acting as Agent hereunder, and may accept fees and other consideration
therefor without having to account for the same to the Lenders.
7.3 Scope of Agent's Duties. The Agent shall have no duties or
responsibilities except those expressly set forth herein, and shall not, by
reason of this Agreement, have a fiduciary relationship with any Lender, and no
implied covenants, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or shall otherwise exist against the Agent. As to any
matters not expressly provided for by this Agreement (including, without
limitation, collection and enforcement actions under the Notes and the Security
Documents), the Agent shall not be required to exercise any discretion or take
any action, but the Agent shall take such action or omit to take any action
pursuant to the reasonable written instructions of the Required Lenders and may
request instructions from the Required Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, pursuant to the written
instructions of the Required Lenders (or all of the Lenders, as the case may be,
in accordance with the requirements of this Agreement), which instructions and
any action or omission pursuant thereto shall be binding upon all of the
Lenders; provided, however, that the Agent shall not be required to act or omit
to act if, in the judgment of the Agent, such action or omission may expose the
Agent to personal liability or is contrary to the Loan Documents or applicable
law.
7.4 Reliance by Agent. The Agent shall be entitled to rely upon any
certificate, notice, document or other communication (including any cable,
telegram, telex, facsimile transmission or oral communication) believed by it to
be genuine and correct and to have been sent or given by or on behalf of a
proper Person. The Agent may treat the payee of any Note as the holder thereof
unless and until the Agent receives written notice of the assignment thereof
pursuant to the terms of this Agreement signed by such payee and the Agent
receives the written agreement of the assignee that such assignee is bound
hereby to the same extent as if it had been an original party hereto. The Agent
may employ agents (including without limitation collateral agents and including
without limitation First Chicago/NBD Canada with respect to administering the
Canadian Advances, acting as collateral agent in Canada and enforcing any of the
Agent's rights and remedies under the Loan Documents in Canada) and may consult
with legal counsel (who may be counsel for the Borrowers), independent public
accountants and other experts selected by it and shall not be liable to the
Lenders, except as to money or property received by it or its authorized agents,
for the negligence or misconduct of any such agent selected by it with
reasonable care or for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts. In
performing any of the functions of the Agent, First Chicago/NBD Canada or any
other Affiliate of the Agent shall be entitled to all of the same powers,
immunities, exculpations, indemnifications and other rights of the Agent
described in this Article VII and otherwise in the Loan Documents. It is
acknowledged and agreed that First Chicago/NBD Canada will be acting as
collateral agent for the Lenders with respect to all collateral in Canada, and
all liens and security interests in Canada will be in favor of First Chicago/NBD
Canada for the benefit of itself and each of the Lenders, and as administrative
agent for payments and fundings of Canadian Advances.
7.5 Default. The Agent shall not be deemed to have knowledge of the
occurrence of any Default or Event of Default, unless the Agent has received
written notice from a Lender or the Borrowers specifying such Default or Event
of Default and stating that such notice is a "Notice of Default". In the event
that the Agent receives such a notice, the Agent shall give written notice
thereto to the Lenders.
7.6 Liability of Agent. Neither the Agent nor any of its directors,
officers, agents, or employees shall be liable to the Lenders for any action
taken or not taken by it or them in connection herewith with the consent or at
the request of the Required Lenders or in the absence of its or their own
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gross negligence or willful misconduct. Neither the Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any recital, statement, warranty
or representation contained in any Loan Document, or in any certificate, report,
financial statement or other document furnished in connection with this
Agreement, (ii) the performance or observance of any of the covenants or
agreements of the Borrowers or any Guarantor, (iii) the satisfaction of any
condition specified in Article II hereof, or (iv) the validity, effectiveness,
legal enforceability, value or genuineness of any Loan Document or any
collateral subject thereto or any other instrument or document furnished in
connection herewith.
7.7 Nonreliance on Agent and Other Lenders. Each Lender acknowledges
and agrees that it has, independently and without reliance on the Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Company and its Subsidiaries
and decision to enter into this Agreement and that it will, independently and
without reliance upon the Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decision in taking or not taking action under this Agreement.
The Agent shall not be required to keep itself informed as to the performance or
observance by the Company or any of its Subsidiaries of the Loan Documents or
any other documents referred to or provided for herein or to inspect the
properties or books of the Company or any of its Subsidiaries and, except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any information concerning the
affairs, financial condition or business of the Company or any of its
Subsidiaries which may come into the possession of the Agent or any of its
affiliates.
7.8 Indemnification. The Lenders agree to indemnify the Agent (to the
extent not reimbursed by the Borrowers, but without limiting any obligation of
the Borrowers to make such reimbursement), ratably according to the respective
principal amounts of the Advances then outstanding made by each of them (or if
no Advances are at the time outstanding, ratably according to the respective
amounts of their Commitments), from and against any and all claims, damages,
losses, liabilities, costs or expenses of any kind or nature whatsoever
(including, without limitation, fees and disbursements of counsel) which may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or the transactions contemplated hereby or any
action taken or omitted by the Agent under this Agreement, provided, however,
that no Lender shall be liable for any portion of such claims, damages, losses,
liabilities, costs or expenses resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including without limitation fees and expenses of
counsel) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent that
the Agent is not reimbursed for such expenses by the Borrowers, but without
limiting the obligation of the Borrowers to make such reimbursement. Each Lender
agrees to reimburse the Agent promptly upon demand for its ratable share of any
amounts owing to the Agent by the Lenders pursuant to this Section. If the
indemnity furnished to the Agent under this Section shall, in the judgment of
the Agent, be insufficient or become impaired, the Agent may call for additional
indemnity from the Lenders and cease, or not commence, to take any action until
such additional indemnity is furnished.
7.9 Successor Agent. The Agent may resign as such at any time upon ten
days' prior written notice to the Company and the Lenders. In the event of any
such resignation, the Required
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Lenders shall, by an instrument in writing delivered to the Company and the
Agent, appoint a successor (which successor shall be approved by the Company
provided no Default or Event of Default then exists), which shall be a
commercial bank organized under the laws of the United States or any State
thereof and having a combined capital and surplus of at least $500,000,000. If a
successor is not so appointed or does not accept such appointment before the
Agent's resignation becomes effective, the retiring Agent may appoint a
temporary successor to act until such appointment by the Required Lenders is
made and accepted or if no such temporary successor is appointed as provided
above by the retiring Agent, the Required Lenders shall thereafter perform all
the duties of the Agent hereunder until such appointment by the Required Lenders
is made and accepted. Any successor to the Agent shall execute and deliver to
the Borrowers and the Lenders an instrument accepting such appointment and
thereupon such successor Agent, without further act, deed, conveyance or
transfer shall become vested with all of the properties, rights, interests,
powers, authorities and obligations of its predecessor hereunder with like
effect as if originally named as Agent hereunder. Upon request of such successor
Agent, the Borrowers and the retiring Agent shall execute and deliver such
instruments of conveyance, assignment and further assurance and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in such successor Agent all such properties, rights, interests,
powers, authorities and obligations. The provisions of this Article VII shall
thereafter remain effective for such retiring Agent with respect to any actions
taken or omitted to be taken by such Agent while acting as the Agent hereunder.
7.10 Sharing of Payments. The Lenders agree among themselves that, in
the event that any Lender shall obtain payment in respect of any Advance or any
other obligation owing to the Lenders under this Agreement through the exercise
of a right of set-off, banker's lien, counterclaim or otherwise in excess of its
ratable share of payments received by all of the Lenders on account of the
Advances and other obligations (or if no Advances are outstanding, ratably
according to the respective amounts of the Commitments), such Lender shall
promptly purchase from the other Lenders participations in such Advances and
other obligations in such amounts, and make such other adjustments from time to
time, as shall be equitable to the end that all of the Lenders share such
payment in accordance with such ratable shares. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of set-off, banker's lien, counterclaim or otherwise as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of
participations theretofore sold, return its share of that benefit to each Lender
whose payment shall have been rescinded or otherwise restored. The Borrowers
agree that any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment, including set-off,
banker's lien or counterclaim, with respect to such participation as fully as if
such Lender were a holder of such Advance or other obligation in the amount of
such participation. The Lenders further agree among themselves that, in the
event that amounts received by the Lenders and the Agent hereunder are
insufficient to pay all such obligations or insufficient to pay all such
obligations when due, the fees and other amounts owing to the Agent in such
capacity shall be paid therefrom before payment of obligations owing to the
Lenders under this Agreement. Except as otherwise expressly provided in this
Agreement, if any Lender or the Agent shall fail to remit to the Agent or any
other Lender an amount payable by such Lender or the Agent to the Agent or such
other Lender pursuant to this Agreement on the date when such amount is due,
such payments shall be made together with interest thereon for each date from
the date such amount is due until the date such amount is paid to the Agent or
such other Lender at a rate per annum equal to the rate at which borrowings are
available to the payee in its overnight federal funds market. It is further
understood and agreed among the Lenders and the Agent that if the Agent shall
engage in any other transactions with the Borrowers and shall have the benefit
of any collateral or security therefor which does not expressly secure the
obligations arising under this Agreement except by virtue of a so-called
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dragnet clause or comparable provision, the Agent shall be entitled to apply any
proceeds of such collateral or security first in respect of the obligations
arising in connection with such other transaction before application to the
obligations arising under this Agreement.
ARTICLE VIII. MISCELLANEOUS
8.1 Amendments, Etc. (a) No amendment, modification, termination or
waiver of any provision of this Agreement nor any consent to any departure
therefrom shall be effective unless the same shall be in writing and signed by
the Required Lenders and, to the extent any rights or duties of the Agent may be
affected thereby, the Agent, provided, however, that no such amendment,
modification, termination, waiver or consent shall, without the consent of the
Agent and all of the Lenders, (i) authorize or permit the extension of time for,
or any reduction of the amount of, any payment of the principal of, or interest
on, the Notes or any Letter of Credit reimbursement obligation, or any fees or
other amount payable hereunder, (ii) amend or extend the respective Commitments
of any Lender set forth on the signature pages hereof or modify the provisions
of this Section regarding the taking of any action under this Section or the
provisions of Section 6.3 or Section 7.10 or the definition of Required Lenders
or any provision of this Agreement requiring the consent of all of the Lenders,
(iii) provide for the discharge of any material Guarantor under the Guaranties
or the release of any substantial amount of the collateral subject to any
Security Document, other than the release of Liens on Collateral that is
permitted to be sold by this Agreement, and the Agent is hereby authorized to
release any such Liens, or (iv) modify any other provision of this Agreement
which by its terms requires the consent of all of the Lenders.
(b) Any such amendment, waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
(c) Notwithstanding anything herein to the contrary, no
Defaulting Lender shall be entitled to vote (whether to consent or to withhold
its consent) with respect to any amendment, modification, termination or waiver
of any provision of this Agreement or any departure therefrom or any direction
from the Lenders to the Agent, and, for purposes of determining the Required
Lenders at any time, the Commitments and the Advances of each Defaulting Lenders
shall be disregarded.
8.2 Notices. (a) Except as otherwise provided in Section 8.2(c)
hereof, all notices and other communications hereunder shall be in writing and
shall be delivered or sent to the Borrowers at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇, Telephone
No. (▇▇▇) ▇▇▇-▇▇▇▇, and to the Agent and the Lenders at the respective
addresses for notices set forth on the signatures pages hereof, or to such
other address as may be designated by the Borrowers, the Agent or any Lender by
notice to the other parties hereto. All notices and other communications shall
be deemed to have been given at the time of actual delivery thereof to such
address, or, unless sooner delivered, (i) if sent by certified or registered
mail, postage prepaid, to such address, on the third day after the date of
mailing, or (ii) if sent by facsimile transmission, upon confirmation of
receipt by telephone at the number specified for confirmation, provided,
however, that notices to the Agent shall not be effective until received. Each
Borrowing Subsidiary agrees that the Company may give any notices or other
requests on its behalf under this Agreement, including without limitation
requests for Advances, and the Borrowing Subsidiary will be bound thereby.
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(b) Notices by the Borrowers to the Agent with respect to
terminations or reductions of the Commitments pursuant to Section 2.2, requests
for Borrowings pursuant to Section 2.4, requests for continuations or
conversions of Borrowings pursuant to Section 2.7 and notices of prepayment
pursuant to Section 3.1 shall be irrevocable and binding on the Borrowers.
(c) Any notice to be given by the Borrowers to the Agent pursuant
to Sections 2.4, 2.7 or 3.1 and any notice to be given by the Agent or any
Lender hereunder, may be given by telephone, and all such notices must be
immediately confirmed in writing in the manner provided in Section 8.2(a). Any
such notice given by telephone shall be deemed effective upon receipt thereof by
the party to whom such notice is to be given. The Borrowers shall indemnify and
hold harmless the Lenders and the Agent from any and all losses, damages,
liabilities and claims arising from their good faith reliance on any such
telephone notice.
8.3 No Waiver By Conduct; Remedies Cumulative. No course of dealing on
the part of the Agent or any Lender, nor any delay or failure on the part of the
Agent or any Lender in exercising any right, power or privilege hereunder shall
operate as a waiver of such right, power or privilege or otherwise prejudice the
Agent's or such Lender's rights and remedies hereunder; nor shall any single or
partial exercise thereof preclude any further exercise thereof or the exercise
of any other right, power or privilege. No right or remedy conferred upon or
reserved to the Agent or any Lender under any Loan Document is intended to be
exclusive of any other right or remedy, and every right and remedy shall be
cumulative and in addition to every other right or remedy granted thereunder or
now or hereafter existing under any applicable law. Every right and remedy
granted by any Loan Document or by applicable law to the Agent or any Lender may
be exercised from time to time and as often as may be deemed expedient by the
Agent or any Lender and, unless contrary to the express provisions of any Loan
Document, irrespective of the occurrence or continuance of any Default or Event
of Default.
8.4 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of any Borrower or
Guarantor made herein or in any Security Document or in any certificate, report,
financial statement or other document furnished by or on behalf of any Borrower
or Guarantor in connection with this Agreement shall be deemed to be material
and to have been relied upon by the Lenders, notwithstanding any investigation
heretofore or hereafter made by any Lender or on such Lender's behalf, and those
covenants and agreements of the Borrowers set forth in Sections 3.8, 3.10 and
8.5 hereof shall survive the repayment in full of the Advances and the
termination of the Commitments.
8.5 Expenses; Indemnification. (a) The Borrowers jointly and severally
agree to pay, or reimburse the Agent for the payment of, on demand, (i) the
reasonable fees and expenses of counsel to the Agent, including without
limitation the fees and expenses of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC, in connection with
the preparation, execution, delivery and administration of the Loan Documents
and in connection with advising the Agent as to its rights and responsibilities
with respect thereto, and in connection with any amendments, waivers or consents
in connection therewith, (ii) all stamp and other taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing or
recording of the Loan Documents (or the verification of filing, recording,
perfection or priority thereof) or the consummation of the transactions
contemplated hereby, and any and all liabilities with respect to or resulting
from any delay in paying or omitting to pay such taxes or fees, (iii) all
reasonable costs and expenses of the Agent and the Lenders (including reasonable
fees and expenses of counsel and whether incurred through negotiations, legal
proceedings or otherwise)) in connection with any Default or Event of Default or
the enforcement of, or the exercise or preservation of any rights under, any
Loan Document or in connection with any refinancing or restructuring of the
credit arrangements provided under this
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Agreement in connection with any Event of Default and (iv) all reasonable costs
and expenses of the Agent (including reasonable fees and expenses of counsel) in
connection with any action or proceeding relating to a court order, injunction
or other process or decree restraining or seeking to restrain the Agent from
paying any amount under, or otherwise relating in any way to, any Letter of
Credit and any and all costs and expenses which any of them may incur relative
to any payment under any Letter of Credit.
(b) The Borrowers jointly and severally hereby indemnify and
agree to hold harmless the Lenders and the Agent, and their respective officers,
directors, employees and agents, from and against any and all claims, damages,
losses, liabilities, costs or expenses of any kind or nature whatsoever which
the Lenders or the Agent or any such Person may incur or which may be claimed
against any of them by reason of or in connection with any Letter of Credit, and
neither any Lender nor the Agent or any of their respective officers, directors,
employees or agents shall be liable or responsible for: (i) the use which may be
made of any Letter of Credit or for any acts or omissions of any beneficiary in
connection therewith; (ii) the validity, sufficiency or genuineness of documents
or of any endorsement thereon, even if such documents should in fact prove to be
in any or all respects invalid, insufficient, fraudulent or forged; (iii)
payment by the Agent to the beneficiary under any Letter of Credit against
presentation of documents which do not comply with the terms of any Letter of
Credit, including failure of any documents to bear any reference or adequate
reference to such Letter of Credit; (iv) any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit; or (v) any other event or
circumstance whatsoever arising in connection with any Letter of Credit;
provided, however, that the Company shall not be required to indemnify the
Lenders and the Agent and such other Persons, and the Lenders shall be liable to
the Company to the extent, but only to the extent, of any direct, as opposed to
consequential or incidental, damages suffered by the Company which were caused
by (A) the Agent's wrongful dishonor of any Letter of Credit after the
presentation to it by the beneficiary thereunder of a draft or other demand for
payment and other documentation strictly complying with the terms and conditions
of such Letter of Credit, or (B) the payment by the Agent to the beneficiary
under any Letter of Credit against presentation of documents which do not comply
with the terms of the Letter of Credit to the extent, but only to the extent,
that such payment constitutes gross negligence of willful misconduct of the
Agent. It is understood that in making any payment under a Letter of Credit the
Agent will rely on documents presented to it under such Letter of Credit as to
any and all matters set forth therein without further investigation and
regardless of any notice or information to the contrary, and such reliance and
payment against documents presented under a Letter of Credit substantially
complying with the terms thereof shall not be deemed gross negligence or willful
misconduct of the Agent in connection with such payment. It is further
acknowledged and agreed that the Company may have rights against the beneficiary
or others in connection with any Letter of Credit with respect to which the
Lenders are alleged to be liable and it shall be a precondition of the assertion
of any liability of the Lenders under this Section that the Company shall first
have exhausted all remedies in respect of the alleged loss against such
beneficiary and any other parties obligated or liable in connection with such
Letter of Credit and any related transactions.
(c) Each Borrower hereby jointly and severally indemnifies and
agrees to hold harmless the Lenders and the Agent, and their respective
officers, directors, employees and agents, from and against any and all claims,
damages, losses, liabilities, costs or expenses of any kind or nature whatsoever
(including reasonable attorneys fees and disbursements incurred in connection
with any investigative, administrative or judicial proceeding whether or not
such Person shall be designated as a party thereto) which the Lenders or the
Agent or any such Person may incur or which may be claimed against any of them
by reason of or in connection with entering into this Agreement or the
transactions contemplated hereby, including without limitation those arising in
connection with or relating to any
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acquisition and the transactions contemplated thereby and under Environmental
Laws; provided, however, that the Borrowers shall not be required to indemnify
any such Lender and the Agent or such other Person, to the extent, but only to
the extent, that such claim, damage, loss, liability, cost or expense is
attributable to the gross negligence or willful misconduct of such Lender or the
Agent, as the case may be.
(d) In consideration of the execution and delivery of this
Agreement by each Lender and the extension of the Commitments, each Borrower
hereby jointly and severally indemnifies, exonerates and holds the Agent, each
Lender and each of their respective affiliates, officers, directors, employees
and agents (collectively, the "Indemnified Parties") free and harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities
and damages, and expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to:
(i) any transaction financed or to be financed in whole or
in part, directly or indirectly, with the proceeds of any Advance;
(ii) the entering into and performance of this Agreement
and any other agreement or instrument executed in connection herewith by any of
the Indemnified Parties (including any action brought by or on behalf of any
Borrower as the result of any determination by the Required Lenders not to fund
any Advance unless such determination is determined by a final non appealable
order by of competent jurisdiction to be wrongful);
(iii) any investigation, litigation or proceeding related to
any acquisition or proposed acquisition by the Company or any of its
Subsidiaries of any portion of the stock or assets of any Person or any merger,
investment, issuance of Capital Stock or any transaction related thereto by the
Company or any of its Subsidiaries, whether or not the Agent or such Lender is
party thereto;
(iv) any investigation, litigation or proceeding related to
any environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the release by the Company or any of its
Subsidiaries of any Hazardous Material; or
(v) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releasing from, any real
property owned or operated by the Company or any of its Subsidiaries of any
Hazardous Material (including any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under any Environmental Law), regardless
of whether caused by, or within the control of, the Company or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the activities of the Indemnified
Party on the property of the Company or such Subsidiary conducted subsequent to
a foreclosure on such property by the Lenders or by reason of the relevant
Indemnified Party's gross negligence or willful misconduct or breach of this
Agreement, and if and to the extent that the foregoing undertaking may be
unenforceable for any reason, the Company hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. The Company shall be
obligated to indemnify the Indemnified Parties for all Indemnified Liabilities
subject to and pursuant to the foregoing provisions, regardless of whether
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the Company or any of its Subsidiaries had knowledge of the facts and
circumstances giving rise to such Indemnified Liability.
8.6 Successors and Assigns. (a) This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, provided that the Borrowers may not, without the prior consent of
the Lenders, assign their rights or obligations hereunder or under the Notes or
any Security Document and the Lenders shall not be obligated to make any Advance
hereunder to any entity other than the Borrowers.
(b) Any Lender may sell to any financial institution or
institutions, and such financial institution or institutions may further sell, a
participation interest (undivided or divided) in, the Advances and such Lender's
rights and benefits under the Loan Documents, and to the extent of that
participation interest such participant or participants shall have the same
rights and benefits against the Borrowers under Section 3.8, 3.10 and 6.2(c) as
it or they would have had if such participant or participants were the Lender
making the Advances to the Borrowers hereunder, provided, however, that (i) such
Lender's obligations under this Agreement shall remain unmodified and fully
effective and enforceable against such Lender, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of its Notes for all
purposes of this Agreement, (iv) the Borrowers, the Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, and (v) such Lender
shall not grant to its participant any rights to consent or withhold consent to
any action taken by such Lender or the Agent under this Agreement other than
action requiring the consent of all of the Lenders hereunder.
(c) The Agent from time to time in its sole discretion may
appoint agents for the purpose of servicing and administering this Agreement and
the transactions contemplated hereby and enforcing or exercising any rights or
remedies of the Agent provided under any Loan Documents or otherwise. In
furtherance of such agency, the Agent may from time to time direct that the
Borrowers provide notices, reports and other documents contemplated by this
Agreement (or duplicates thereof) to such agent. The Borrowers hereby consent to
the appointment of such agent and agrees to provide all such notices, reports
and other documents and to otherwise deal with such agent acting on behalf of
the Agent in the same manner as would be required if dealing with the Agent
itself.
(d) Each Lender may, with the prior consent of the Company (which
shall not be unreasonably withheld and shall not be required if an Event of
Default has occurred and is continuing or if such assignment is to another
Lender or an Affiliates of a Lender) and the Agent, assign to one or more banks
or other entities all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitments,
the Advances owing to it and the Notes held by it); provided, however, that (i)
each such assignment shall be of a uniform, and not a varying, percentage of all
rights and obligations, (ii) except in the case of an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitments of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000, and in
integral multiples of $1,000,000 thereafter, or such lesser amount as the
Company and the Agent may consent, (iii) the parties to each such assignment
shall execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance in the form of Exhibit M hereto (an
"Assignment and Acceptance"), together with any Note or Notes subject to such
assignment and a processing and recordation fee of $5,000, and (iv) any Lender
may without the consent of the Company or the Agent, and without paying any fee,
assign to any Affiliate of such Lender that is a bank or
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financial institution all of its rights and obligations under this Agreement.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in such Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(e) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the Company
and its Subsidiaries or the performance or observance by the Borrowers and the
Guarantors of any of their obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.6 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(f) The Agent shall maintain at its address designated on the
signature pages hereof a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitments of, and principal amount of the Advances owing
to, each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(g) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee, together with any Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Company. Within five Business Days after its receipt of such
notice, the Borrowers, at its own expense, shall execute and deliver to the
Agent in exchange for the surrendered Note or Notes a new Note or Notes to the
order of such assignee in an amount equal to the Commitments assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment
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hereunder, a new Note to the order of the assigning Lender in an amount equal to
the Commitments retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit M
hereto.
(h) The Borrowers shall not be liable for any costs or expenses
of any Lender in effectuating any participation or assignment under this Section
8.6.
(i) The Lenders may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.6, disclose to the assignee or participant or proposed assignee or participant
any information relating to the Company and its Subsidiaries.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in, or assign,
all or any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and the Note or Notes held by it) in favor
of any Federal Reserve Lender in accordance with Regulation A of the Board of
Governors of the Federal Reserve System; provided that such creation of a
security interest or assignment shall not release such Lender from its
obligations under this Agreement.
8.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.8 Governing Law. This Agreement is a contract made under, and shall
be governed by and construed in accordance with, the law of the State of
Michigan applicable to contracts made and to be performed entirely within such
State and without giving effect to choice of law principles of such State. The
Borrowers and the Lenders further agrees that any legal or equitable action or
proceeding with respect to any Loan Document or the transactions contemplated
hereby shall be brought in any court of the State of Michigan, or in any court
of the United States of America sitting in Michigan, and each of the Borrowers
and the Lenders hereby submits to and accepts generally and unconditionally the
jurisdiction of those courts with respect to its Person and property, and, in
the case of each Borrower irrevocably appoints the Company as its agent for
service of process and irrevocably consents to the service of process in
connection with any such action or proceeding by personal delivery to such agent
or to the Company, as the case may be, or by the mailing thereof by registered
or certified mail, postage prepaid to the Company at its address for notices
pursuant to Section 8.2. The Borrowers shall at all times maintain such an agent
in Michigan for such purpose and shall notify the Lenders and the Agent of such
agent's address in Michigan within ten days of any change of address. Nothing in
this paragraph shall affect the right of the Lenders and the Agent to serve
process in any other manner permitted by law or limit the right of the Lenders
or the Agent to bring any such action or proceeding against the Borrowers or any
property in the courts of any other jurisdiction. The Borrowers and the Lenders
hereby irrevocably waives any objection to the laying of venue of any such
action or proceeding in the above described courts.
8.9 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for the convenience of reference
only and shall in no way modify any of the terms or provisions hereof.
8.10 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any Person, or which such Person
is prohibited from taking, such provision
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shall be applicable whether such action is taken directly or indirectly by such
Person, whether or not expressly specified in such provision.
8.11 Integration and Severability. The Loan Documents embody the entire
agreement and understanding between the Borrowers, the Agent and the Lenders,
and supersede all prior agreements and understandings, relating to the subject
matter hereof, other than any commitment letter and fee letter among the
Company, the Arranger and the Agent with respect to matters among the Company,
the Arranger and the Agent. In case any one or more of the obligations of the
Borrowers under the Loan Document shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
obligations of the Borrowers shall not in any way be affected or impaired
thereby, and such invalidity, illegality or unenforceability in one jurisdiction
shall not affect the validity, legality or enforceability of the obligations of
the Borrowers under any Loan Document in any other jurisdiction.
8.12 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to, or
would be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default or an Event of Default if such action is taken or
such condition exists.
8.13 Interest Rate Limitation. Notwithstanding any provisions of any
Loan Document, in no event shall the amount of interest paid or agreed to be
paid by the Borrowers exceed an amount computed at the highest rate of interest
permissible under applicable law. If, from any circumstances whatsoever,
fulfillment of any provision of any Loan Document at the time performance of
such provision shall be due, shall involve exceeding the interest rate
limitation validly prescribed by law which a court of competent jurisdiction may
deem applicable hereto, then, ipso facto, the obligations to be fulfilled shall
be reduced to an amount computed at the highest rate of interest permissible
under applicable law, and if for any reason whatsoever any Lender shall ever
receive as interest an amount which would be deemed unlawful under such
applicable law such interest shall be automatically applied to the payment of
principal of the Advances outstanding hereunder (whether or not then due and
payable) and not to the payment of interest, or shall be refunded to the
relevant Borrower if such principal and all other obligations of the Borrowers
to the Lenders have been paid in full.
8.14 Judgment and Payment. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder by any
Borrower in one currency into another currency, such Borrower agrees, to the
fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the relevant Lender could purchase the first currency with
such other currency for the first currency on the Business Day immediately
preceding the day on which the final judgment is given.
(b) The obligations of any Borrower in respect of any sum due to
any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any payment obligation or judgment
in a currency (the "Payment Currency") other than applicable currency, be
discharged only to the extent that, on the Business Day following receipt by the
Applicable Creditor of any sum adjudged to be so due in the Payment Currency,
the Applicable Creditor may in accordance with normal banking procedures in the
relevant jurisdiction purchase applicable currency with the Payment Currency; if
the amount of applicable currency so purchased is less than the sum originally
due to the Applicable Creditor in applicable currency, each Borrower agrees, as
a separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such
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loss. The obligations of the Borrowers contained in this Section 8.14 shall
survive the termination of this Agreement and the payment of all other amounts
owing hereunder.
8.15 Acknowledgments. The Company hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) none of the Agent or any Lender has any fiduciary
relationship with or duty to the Company arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Agent and the Lenders, on the one hand, and the Company, on the other hand,
in connection herewith or therewith is solely that of debtor and creditor;
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Company and the Lenders; and
(d) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential damages.
8.16 WAIVER OF JURY TRIAL. THE LENDERS AND THE AGENT AND THE BORROWERS,
AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO
A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR
ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF ANY OF THEM. NEITHER ANY LENDER, THE AGENT, NOR THE
BORROWERS SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH
ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE
DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY ANY PARTY HERETO
EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY SUCH PARTY.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written, which
shall be the Effective Date of this Agreement.
OXFORD AUTOMOTIVE, INC.
By:
----------------------------
Its:
------------------------
BMG NORTH AMERICA LIMITED
By:
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Its:
------------------------
OXFORD SUSPENSION LTD.
By:
----------------------------
Its:
------------------------
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Address for Notices: NBD BANK, as a Lender and as Agent
NBD Bank
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ----------------------------
Its:
Attention: ▇▇▇▇ ▇▇▇▇▇ ------------------------
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $110,000,000
Tooling Revolving Credit Commitment: $35,000,000
Term Loan Commitment: $30,000,000
Percentage of
Total Commitments: 100%
Applicable Lending Office:
NBD Bank
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices: FIRST CHICAGO NBD BANK, CANADA,
as the Affiliate designated by NBD
Bank to make Canadian Advances on
its behalf and as Agent for the
purposes specified in this Agreement
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ By:
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ---------------------------------
Its:
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
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